Lawyer best practices: communication and privilege
Communication with a client is probably the most important aspect of the attorney-client relationship. But lawyers often forget that communication about their clients may become discoverable in a malpractice case. Why?
Waiver of the attorney-client privilege protecting communication
When a client makes a malpractice claim or files a Bar grievance against their attorney, the client waives the attorney-client privilege. The lawyer may then use information learned during the representation in their own defense. Some states may limit the amount and type of information a lawyer may use in his own defense. But, discovery is a two way street, and lawyers forget that communications about the client, whether in a memo to the file or written communication to others inside or outside the firm, may also become discoverable. If the communication about the client is derogatory, it could be very damaging to the lawyer. Lawyers should never make comments about an identifiable client, whether written or oral, to anyone.
Name-calling can, and will, hurt lawyers
Several years ago, we represented a corporation in a lawsuit against its former lawyers, a large national law firm. Our client corporate client sued for legal malpractice and breaching the firm’s fiduciary duties owed to the client-corporation by engaging in conflicts of interest, namely placing the firm’s own financial interests above the interests of the client-corporation. We used software to sort through the mountain of documents produced by the defendants. The software helped us find several critical email communications between lawyers, their non-lawyer support staff, and firm management at another firm office. One firm partner even wrote to another in an email “[t]his client is the Golden Goose that we cannot afford to lose.” Because the claim involved a breach of fiduciary duty for excessive billing, these communications seriously harmed the firm’s defense efforts.
Harmful communication doesn’t have to be formal, either. It could also be as simple as handwritten notes on a letter, or a scribbled notes on sticky tabs. Always be mindful about what notes actually go in the file.
Protecting yourself with objective communications
Of course, a detailed, thorough memo to the file pointing out the pros and cons of actions taken or the strengths and weaknesses of the case, the client, or the witnesses could be helpful. First, once a case is over most lawyers have to move on to the next matter. A well-written memo is helpful in refreshing your recollection about the case and why things were handled a certain way. Second, after the file is returned to the client, such a memo would be extremely helpful in defending a legal malpractice claim or a Bar grievance. Just make sure to consult your notes, and be as objective as possible.
As a best practice, avoid communicating about your client in a negative way, and certainly not in writing. If difficult circumstances arise, prepare a memo to the file during the case, and definitely when the case concludes, so that you can defend yourself or your firm if necessary.
Some examples from Georgia case law
Several Georgia cases have dealt with what is and is not discoverable in subsequent malpractice litigation. See, e.g., Swift Currie McGee & Hiers, et al. v. Henry, et al., 581 S.E.2d 37 (Ga. 2003), and St. Simons Waterfront, LLC v. Hunter, MacClean, Exley & Dunn, P.C., 746 S.E.2d 98 (Ga. 2013). Swift Currie discussed why certain documents prepared by the client’s attorney could be part of the client’s file, and discoverable in later litigation. St. Simons Waterfront involved communications between attorneys working on the complaining client’s matter and the firm’s inside General Counsel, or outside counsel. These communications may be protected as attorney-client privileged, and not discoverable by the complaining client.
If you would like to discuss your particular situation, whether as a lawyer or as a client pursuing a legal malpractice or breach of fiduciary duty claim, please feel free to contact Chandler Law for a consultation.
