Attorney Client Privilege and Work Product Protection for Law Firm In-House Counsel
In Georgia, a law firm’s in-house counsel is now entitled to the same attorney client-privilege and work product protections as its outside counsel would be. That was the Georgia Supreme Court’s holding in St. Simons Waterfront, LLC v. Hunter, Maclean, Exley, & Dunn, P.C., 746 S.E.2d 98 (2013), issued on July 11, 2013. To warrant application of the attorney-client privilege and the work product doctrine, a firm’s in-house counsel must be acting in that formal capacity and the firm must be established as an actual client of the in-house counsel.
In St. Simon’s Waterfront, real estate investors sued the defendant law firm over its representation of them in a real estate venture. In discovery, the investors sought communications between their lawyers and the firm’s in-house counsel. Despite the law firm’s assertion of attorney-client privilege and work product protection, the trial court ordered production of the records. On appeal, the Court of Appeals vacated the trial court’s order and remanded for further consideration. The Supreme Court granted certiorari to consider the applicability of attorney-client privilege and the work product doctrine in the law firm in-house counsel context.
The Supreme Court of Georgia held that the attorney-client privilege extended to the law firm’s in-house counsel insofar as in-house counsel was acting in that formal capacity and the firm had been clearly established as in-house counsel’s client. That determination will be a fact-based one, and may depend upon the procedures implemented to establish the representation as separate and apart from the firm’s regular business. The Court noted that utilizing billing procedures that recognize the firm as a client may be a factor that will help create this distinction, as would a high level of formality granted the in-house position.
The court identified the following four factors which courts should consider in determining whether of the attorney-client privilege applies to communication with a firm’s in-house counsel: 1) whether there is a genuine attorney-client relationship between the firm’s lawyers and its in-house counsel; 2) whether the communications in question were intended to advance the firm’s interests in limiting exposure rather than the client’s interest in obtaining sound legal representation; 3) whether the communications took place and were kept in confidence; and 4) whether any exception to the privilege applies.
Similarly, the Court held that the work product doctrine applies to a law firm’s in-house counsel, provided that intra-firm communications regarding the client’s claims against the firm involve only the in-house counsel, firm management, and those personnel involved in the underlying matter. The work product doctrine does not apply to those documents or things created or amassed by an attorney during the representation of the client. Instead, the work product doctrine applies once the firm and client are adversarial and the in-house counsel is protecting the firm’s interests rather than those of the client.