Attorney Defender

Due to the Covid-19 crisis, the Chief Justice of the Supreme Court of Georgia has issued a state of judicial emergency pursuant to OCGA 38-3-60 et seq. The original order was amended to more closely align with the statutory language. See the most recent order here.

The most important part of the most recent version of the order:

Pursuant to OCGA § 38-3-62, during the period of this Order, the undersigned hereby suspends, tolls, extends, and otherwise grants relief from any deadlines or other time schedules or filing requirements imposed by otherwise applicable statutes, rules, regulations, or court orders, whether in civil or criminal cases or administrative matters, including, but not limited to any: (1) statute of limitation; (2) time within which to issue a warrant; (3) time within which to try a case for which a demand for speedy trial has been filed; (4) time within which to hold a commitment hearing; (5) deadline or other schedule regarding the detention of a juvenile; (6) time within which to return a bill of indictment or an accusation or to bring a matter before a grand jury; (7) time within which to file a writ of habeas corpus; (8) time within which discovery or any aspect thereof is to be completed; (9) time within which to serve a party; (10) time within which to appeal or to seek the right to appeal any order, ruling, or other determination; and (11) such other legal proceedings as determined to be necessary by the authorized judicial official.

The modern era of attorney business marketing probably started in 1977 with the Supreme Court decision in Bates v. State Bar of Arizona, which upheld the surprisingly novel argument that the Constitution applies to the regulation of lawyers.

Georgia and some other states still have some vestiges of rules that try to deny the modern business nature of law firms. The Courts are about to force a change again.

Salt Lake City based LawHQ seeks to have offices in all 50 states by the end of the year, but 9 states, including Georgia, forbid trade names for law firms and require that they have the name of an attorney in the firm name. LawHQ has filed a lawsuit citing the first amendment and seeking the right to open offices using the firm trade name. The nine states targeted are Georgia, Indiana, Mississippi, Nebraska, New Jersey, New York, Ohio, Rhode Island and Texas. All require law firm names to include the name of a lawyer practicing at the firm, the suits say.

I don’t know anyone that doesn’t think this suit will likely be successful (or many that understand why this rule hasn’t been changed without the need for litigation).

UPDATE:  In response to the lawsuit, the Supreme Court of Georgia amended Rule 7.5 to no longer require a lawyer’s name in the firm name. The amendment became effective February 6, 2020.

Malpractice is not the only potential liability exposure for litigation attorneys. Attorneys also face claims under several of Georgia’s fee shifting statutes, including O.C.G.A. §9-15-14 and O.C.G.A. §51-7-80 et seq. Both of these statutes apply to claims that are considered frivolous or lacking in substantial justification. They each permit a claim against both the opposing parties asserting frivolous claims and their counsel. The former permits claims for attorney fees only and by motion only. The latter, however, is brought as a new lawsuit and permits the recovery of attorney fees and litigation expenses, plus all other damages arising out of the abusive litigation.

The opinion goes into great detail into the common law abusive litigation torts and the statutory scheme that replaced the common law. The opinion may become more famous for its statutory construction approach than its actual holding. The import for now, however, is that when a lawyer get the required notice from opposing counsel for abusive litigation, the evaluation needs to include the potential exposure to punitive damages.

Rule 1.6 of the Georgia Rules of Professional Conduct grants a broad right of attorneys to use confidential information for their own defense. The case just decided by the Georgia Supreme Court addressed a slight corollary of that issue: what privilege exists as to the work done by a non-party law firm involved in the representation of the Plaintiff?

In a case of first impression, the Georgia Supreme Court held that a malpractice suit waived the plaintiff’s attorney-client privilege as to third-party attorneys involved in related representation:

Under longstanding Georgia law, when a client sues his former attorney for legal malpractice, the client impliedly waives the attorney-client privilege with respect to the underlying matter or matters to the extent necessary for the attorney to defend against the legal malpractice claim. The issue presented in this appeal is whether the implied waiver 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. [Procedural history omitted] We hold 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 representation had a complex factual background. As described by the Court, the individual client and two of his business entities had invested in a California aerospace company. The law firm provided advice that included termination of the company president. But, the law firm also allegedly had an attorney client relationship with that president (Miller), and the aerospace company. The law firm did not disclose or obtain written waivers of any potential or actual conflicts of interest resulting from prior or ongoing representation of the aerospace company or Miller. Two lawsuits were filed, and the defendant law firm represented its client and his related entities against the aerospace firm and Miller. Miller filed a motion the Georgia lawsuit to disqualify the defendant law firm, which was granted. The defendant law firm then withdrew from the California lawsuit. 

In the resulting legal malpractice suit, the defendant law firm sought discovery:

…among other things: (1) Holland & Knight’s file for any corporate work performed for Plaintiffs regarding [the aerospace company,] Miller, another named individual, and another named company; (2) Holland & Knight’s litigation file for the Fulton County lawsuit; (3) Holland & Knight’s litigation file for the California lawsuit; and (4) all correspondence related to that corporate work and the Fulton County and California lawsuits, including communications between Plaintiffs and Holland & Knight.

Both Plaintiff and Holland & Knight asserted privilege and sought a protective order. The trial court denied the protective order because it was undisputed that Holland & Knight together with defendant law firm represented the plaintiff in connection with the matters that are the subject of the legal malpractice complaint, and thus the plaintiff had “waived the attorney-client privilege and work product protection concerning Holland & Knight . . . by asserting the present legal malpractice claims.”

After declaring this issue one of first impression, the Georgia Supreme Court reviewed the state law on attorney-client privilege and implied waiver:

A similar rationale requires recognition that the implied waiver of the attorney-client privilege extends to other attorneys who represented the plaintiff-client in the same underlying matter. … Thus, by suing [defendant law firm] for legal malpractice, Plaintiffs have put at issue questions of proximate causation, reliance, and damages, all of which may have been affected by other attorneys who represented Plaintiffs in the same matters underlying Plaintiffs’ malpractice complaint.

The Court of Appeals should have affirmed the trial court’s ruling that Plaintiffs  were not entitled to a protective order based on attorney-client privilege.

Because the Court of Appeals found no wavier of the privilege, it did not address the work product protections argued in favor of the protective order. The Supreme Court remanded the work product analysis to the Court of Appeals.

This opinion is consistent with the general principles of Rule 1.6 that clients should not be able to make claims against attorneys while using privilege as a means to limit their attorneys’ defense.

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