The Attorney-client Privilege for Lawyers: Planning Is Paramount
| Publication year | 2014 |
| Pages | 0016 |
by Jake Evans and Stan Hill
As long as attorneys have clients, they possess a vested interest in understanding and maintaining the attorney-client privilege with not only their clients, but also their own lawyers. Maintaining the attorney-client privilege between attorneys and "in-house" law firm counsel is particularly important because such communications are often requested in the discovery phase of legal malpractice cases.
In St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P.C.,[1] the Supreme Court of Georgia ruled that the familiar four-prong test for the attorney client privilege applies to communications between attorneys and their in-house counsel. Conceptually, at least, the attorney-client privilege applies uniformly across all attorney-client relationships.
This article aims to survey the Hunter Maclean decision and provide an analytical framework to enhance the likelihood that the attorney-client privilege will be maintained between attorneys and their in-house counsel. Notably, how in-house law firm counsel establish each of the four elements of the attorney-client privilege may depend upon the size and resources of the law firm. This article explores these differences, suggests procedures for maintaining attorney-client privilege, and identifies pitfalls to be avoided. The guidance of Hunter Maclean is also instructive for in-house corporate counsel seeking to maintain the attorney-client privilege in the context of internal investigations.
Attorneys should also carefully consider the discussion of the work product doctrine in Hunter Maclean. In light of the statute codifying the work product doctrine and precedent case law expressly preserved by Hunter Maclean, the scope of the work product doctrine may, depending upon the circumstances, be broader or narrower than the circumstances addressed in Hunter Maclean.
Various Approaches to Attorney-Client Privilege with In-House Law Firm Counsel
Prior to Hunter Maclean, Georgia courts had not established the parameters of the attorney-client privilege in the context of law firm in-house counsel, while other state and federal courts had adopted a variety of approaches. Some jurisdictions rejected applying the attorney-client privilege to intra-firm communications regarding current clients because of the fiduciary relationship between the law firm and client.[2] Other courts applied the attorney-client privilege only to communications preceding the client's assertion of an adverse claim.[3] Yet others carved out an exception to the privilege for "good cause,"[4] and some treated an in-house attorney's assertion of attorney-client privilege the same as any other assertion of attorney-client privilege.[5]
Endorsing no particular approach, the Supreme Court of Georgia in Hunter Maclean held that "the best course is simply to analyze the privilege issue [as] in any other lawsuit in which the privilege was asserted,"[6] through the familiar four-element test for attorney-client privilege. Those elements are: (1) the existence of an attorney-client relationship, (2) the communication is related to the purpose for which legal advice is sought, (3) the communication is maintained in confidence, and (4) no exception applies.[7] The Court further held that applying the attorney-client privilege, an evidentiary rule, did not depend upon ethical issues implicated by in house counsel advising attorneys concerning a potential or pending dispute with a client.[8]
How best to preserve the attorney-client privilege between attorneys and in-house counsel may depend upon the unique organization and structure of each firm, including the law firm's size, resources and the scope of the client representation at issue. All firms, however, can benefit from careful advance planning for how the attorney-client privilege will be maintained.
Satisfying Four Elements of AttorneyClient Privilege
Hunter Maclean offers several examples of how a law firm's inhouse counsel may satisfy each element of the attorney-client. Nonetheless, scarcity of time and resources may force a time-pressured attorney to incorrectly apply the attorney-client privilege's elements. Judicious forethought about these issues may minimize exposure to the unchartered contours of the in-house attorneyclient privilege.
Existence of Attorney-Client Relationship
Satisfying the first element of the attorney-client privilege requires a "genuine" attorney-client relationship between the law firm and in-house counsel.[9] The purported in-house counsel must be "actually acting in that capacity with regard to anticipated legal action against the firm or other matters related to the firm's compliance with its legal and ethical obligations."[10] In addition, the law firm should be "clearly established as the client before or in the course of the in-firm communication."[11] Although the attorney-client relationship may be self-evident from the communication's content, laying the procedural foundation for establishing an attorney-client relationship reduces overall expenses and engenders confidence that the attorney-client privilege will in fact attach.
Attorneys can prospectively implement measures to increase the likelihood that a court will recognize an intra-firm attorney-client relationship. In Hunter Maclean, the Supreme Court of Georgia noted that billing procedures denoting the law firm as the client, as well as separate files for communications and work product on the matter which the attorney seeks advice, "help[] to distinguish the firm as the in-house counsel's client," independent of the underlying representation.[12] Separate file maintenance is vital, as a client presumably owns the contents of its file, and the attorney cannot assert the work product doctrine to preclude document production to the client.[13]
The formality of the in-house counsel position is also relevant. The Supreme Court of Georgia in Hunter Maclean noted that a bona fide attorney-client relationship is "easier" to establish with an attorney devoted full-time to the inhouse counsel role, to the exclusion of other work.[14] On the other hand, the less formality associated with the position (i.e., the less time an attorney devotes to in-house counseling), "the greater will be the significance of other facts, such as billing and record-keeping." Typically, then, the smaller the law firm, the greater the reliance on billing...
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