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Privilege protects lawyer conversations with their firm’s in-house counsel, ABA brief says

Posted Jan 28, 2013 2:57 PM CDT
By Debra Cassens Weiss

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Lawyers who seek confidential advice from their firm’s in-house counsel about a potential malpractice claim should not have their communications disclosed absent a compelling reason, the ABA says in an amicus brief.

Attorney-client privilege and the work-product doctrine should protect the communications “unless there is a compelling cause for a legal exception,” according to the ABA brief (PDF) filed with the Georgia Supreme Court. An ABA press release has more information.

“Lawyers, like other clients, need the ability to obtain confidential legal advice in order to comply with the law and, unlike most clients, to comply with their ethical obligations,” the brief says. “Lawyers face an increasing array of legal and ethics duties, and the availability of in-house advice, without the cost or inconvenience of seeking an outside lawyer, encourages lawyers to pursue internal investigations where questions of misconduct or malpractice arise.”

The issue arose in a malpractice case by a developer against Hunter, Maclean, Exley & Dunn, according to prior coverage of the case by the ABA/BNA Lawyers Manual on Professional Conduct.

The developer hired the firm for the sale of high-end condos on St. Simons Island, Ga. After buyers began seeking to rescind their purchase contracts, the developer asked Hunter Maclean about enforcing a specific enforcement clause in contracts drafted by the firm. Lawyers advised the developer that courts would be reluctant to enforce the clause, given high down payments by buyers. Sensing that the developer would file a claim against the firm, lawyers consulted with the firm’s in-house counsel and told of a plan to find new counsel for the developer.

The brief says the ABA is not taking a position in the Hunter Maclean case because the relevant facts have not yet been determined.

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