Speaking of Privilege Waiver…

I deal alot with malpractice claims, conflicts of interest, and so on.  I'm not part of the firm, and so privilege attaches to communications between me and the firms who contact me.

What about intra-firm communications?  

A recente Georgia appellate court surveyed existing law and rejecting the dominant approaches to that issue.  The case is Hunter, Maclean, Exley & Dunn v. St. Simon's Island Waterfront LLC, and  is available here.

Boiled down, the firm was concerned it had committed malpractice, thought the client had accused it of that, but could not withdraw because there were multiple on-going representations.  The firm consulted with its own lawyers, as well as outside counsel, on the issues. When this case, the malpractice suit, was filed, the firm asserted privilege as to the communications.

The court rejected the notion that a firm cannot assert a privilege against its own client because all conflicts are imputed, and also rejected the notion that it can assert the privilege unless the fiduciary exception applies.  Instead, in broad terms it adopted the approach of Professor Elizabeth Chambliss from The Scope of In-Firm Privilege, 80 NOTRE DAME L. REV. 1721, 1745 (2005).  In part the court explained:

Nevertheless, when firm counsel “individually has no conflict of interest under Rule 1.7 or Rule 1.9, and the in-firm communication meets the ordinary requirements for privilege,” we conclude that “courts should not automatically impute a conflict under Rule 1.10.”43 Instead, imputation should depend on “the structure of the in- house position.”44 Thus, when “firm counsel holds a full-time position and does not represent outside clients, courts should not impute a conflict under Rule 1.10." In this regard, compensation is perhaps the clearest way to demarcate firm counsel’s role, particularly through the use of billing procedures “to establish the firm as the client and to distinguish the lawyer who acts as firm counsel from other lawyers in the firm.” The role can be further demarcated by ensuring that its function is known and understood throughout the firm, that its compensation is not significantly determined by firm profit, and other similar measures. 

Additionally, courts should not impute a conflict to part-time firm counsel when “the lawyer who serves in that capacity does so on a formal, ongoing basis, such that the firm is clearly established as the client before the in-firm communication occurs.”48 So long as counsel in this position has had “no involvement in the outside representation at issue and the firm is clearly established as the client before the in- firm communication occurs, firm counsel should be treated as the functional equivalent of corporate in house counsel.” Put simply, “the same lawyer who represents the outside client cannot simultaneously represent the firm in a dispute between the firm and that client without the informed consent of both clients.”

There's a lot of cautionary language in the opinion, and limitations, and definitely worth a read.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.