ABA says Attorney-to-In-House Attorney Consultation should be Privileged

In a recently published amicus opinion, the ABA took a stand for its position that the attorney-client privilege should protect from disclosure communications between an attorney and her in-house counsel, even if the two attorneys are colleagues.  In most scenarios, inter-office communications are discoverable.  Privilege may not apply when attorneys consult amongst themselves.  On the other end of the spectrum, consultation between client and outside counsel is usually protected from disclosure.  However, the ABA’s recent amicus opinion focuses on the narrow situation when an attorney consults with a member of her firm’s designated in-house counsel.

The details of the underlying legal malpractice matter in St. Simmons Waterfront, LLC v. Hunter, Maclean, Exley, Dunn, P.C., which is pending before the Georgia Supreme Court, are not necessarily important to this analysis.  Rather, it is the ABA’s argument for protecting from disclosure communications between attorney and in-house attorney colleagues which is of particular interest. According to the ABA in its amicus brief:

“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.  Lawyers face an increasing array of legal and ethical 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.”

In-house counsel have become fixtures at law firms, according to the ABA.  Further, attorney specialization and complex representations have increased the need for full and frank communication between in-house attorneys and their colleagues/clients.  The ABA encourages law firms big and small to “invest in and formalize the role of firm counsel.” This, in turn, would “promote compliance with professional regulation.”

Given the frequency of high-exposure malpractice claims against attorneys, and the importance of attorneys to self-monitor the potential for ethical pitfalls, it may be worthwhile for all firms to develop an in-house program.  Green associates and seasoned attorneys alike must be made aware of the availability of a designated “safe zone” to discuss potential problems before they boil over.  In-house counsel may play a key role in attorney risk management and, according to the ABA, should absolutely be considered protected communications.  We will collectively keep an eye on these proceedings to learn if the Georgia Supreme Court agrees.

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