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You, You, and You: Implied Waiver of Attorney-Client Privilege Extends to Attorney and Non-Party Attorneys Sued for Malpractice

Posted on: March 13th, 2020

By: Jake Loken

The Supreme Court of Georgia recently decided in Hill, Kertscher & Wharton, LLC v. Moody, No. S18G1436, that the implied waiver of attorney-client privilege that occurs when an individual sues his former attorney also extends to other attorneys who represented that individual, so long as those other attorneys were representing the individual in the “same underlying transaction or litigation.”

In Hill, Kertscher & Wharton, LLC v. Moody, the plaintiff filed a lawsuit against his former attorneys from Hill, Kertscher & Wharton, LLP who provided legal advice about how to complete a corporate takeover. The former attorneys told plaintiff about what actions would need to be done to complete his goal of a corporate takeover, including the filing of a lawsuit.

The former attorneys filed the lawsuit, but through the course of the litigation, they were forced to withdraw from the suit, and a second suit that had been filed in another state declared all actions taken to complete the corporate takeover to be void. After this, plaintiff filed a lawsuit against his former attorneys alleging malpractice.

During the malpractice suit, the former attorneys raised the defense that non-parties caused some or all of the damages alleged by the plaintiff, including attorneys from the law firm of Holland & Knight LLP. The former attorneys alleged the plaintiff directed his former attorneys to follow the instruction of Holland & Knight over the course of their interactions with plaintiff.

When served with a request for production of documents, Holland & Knight raised attorney-client privilege and work product protection as reasons for not producing documents. Plaintiff then also filed for a protective order on the same grounds as Holland & Knight. The trial court denied the protective order, and the plaintiff appealed. The Court of Appeals reversed, and an appeal was made to the Supreme Court.

The Court was faced with the question of whether the implied waiver of attorney-client privilege “extends to the client’s communications with other attorneys who represented the client with respect to the same underlying matter, but whom the client chose not to sue.”

All the Justices, less one who was not participating and another who was disqualified, held that “when a client sues his former attorney for legal malpractice, the implied waiver of the attorney-client privilege extends to the client’s communications with other attorneys who represented the client with respect to the same underlying transaction or litigation.” The Court also commented on the work product exception, saying that trial courts must still protect the work covered by this exception, even in the face of a malpractice claim, by requiring the parties requesting such work satisfy the required test to obtain such work.

If you have any questions or would like more information, please contact Jake Loken at [email protected] or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.

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