Memo Tests Limits of Lawyers' Work-Product Protection

A Georgia Supreme Court case between an attorney and his former lawyer over possession of a memo could define the scope of the work-product privilege.

The high court, which granted certiorari in the case on Oct. 3, already appears divided over the issues, one of which is whether a document that wasn’t prepared in anticipation of litigation can get work-product privilege. Chief Justice Norman S. Fletcher, Presiding Justice Leah Ward Sears and Justice Carol W. Hunstein dissented in the decision to grant cert. Swift, Currie, McGhee & Hiers v. Henry, No. S02C1248.

The underlying dispute between the parties arose two years ago. Swift, Currie, McGhee & Hiers partner James T. McDonald Jr. and his courtroom opponent, Wade K. Copeland of Carlock, Copeland, Semler & Stair, allegedly discussed the merits of a motion for sanctions and attorney fees for frivolous litigation that Copeland had filed on behalf of a client in Gwinnett Superior Court against McDonald’s client, Athens lawyer J. Hue Henry.

Henry claimed his lawyer told him Copeland admitted filing the sanctions motion for spite, and promptly filed his own sanctions claim against Copeland. When McDonald refused to produce a memo he’d created about the conversation at issue, which Henry wanted to use to support his case, Henry sued him in Fulton Superior Court.

Last year, Judge Alice D. Bonner ruled that McDonald did not have to give Henry the document. But in the underlying Gwinnett case, Judge Michael C. Clark ruled that McDonald should hand over the memo.

The Georgia Court of Appeals reviewed the decisions together, and decided that McDonald should have to give up the memo. McDonald, through his attorneys, petitioned the supreme court for certiorari. The court indicated that it was concerned with two issues:

� Whether the memo is attorney work-product and thus protected by qualified immunity; and

� Whether the memo is a document prepared in anticipation of litigation, and if it isn’t, whether that fact removes work-product privilege.

The work-product privilege is addressed in O.C.G.A. � 9-11-26(b)(3), which says a party may discover documents if they are relevant, not privileged and prepared in anticipation of litigation or for trial.

ANTICIPATION OF LITIGATION?

Lawyers for Henry and another respondent argue against granting cert in their brief. Regina M. Quick of Athens, Ga., and Henry’s law partner, Athens attorney Christopher L. Casey, say that McDonald’s memo was never privileged because it wasn’t prepared in anticipation of litigation or for trial.

In an interview, Quick said that the conversation at issue between McDonald and Copeland apparently took place before the conclusion of the underlying Gwinnett case.

But the conversation doesn’t meet the criteria for work-product privilege, she said.

That’s because McDonald wasn’t prosecuting a frivolous litigation claim against Copeland, she said. Rather he was defending Henry from one. Henry didn’t file his own frivolous litigation suit against Copeland until after the conversation took place. McDonald never represented Henry in the frivolous litigation suit against Copeland, she said.

Henry apparently asked McDonald to prepare a memo of his conversation with Copeland. McDonald did, but then refused to give it to Henry. So Henry sued McDonald and his firm — Swift Currie — for breach of fiduciary duty.

“The memo was prepared after Mr. McDonald’s representation of Mr. Henry was concluded,” Quick said. That means, she added, that it wasn’t privileged.

SEPARATE WORK-PRODUCT PRIVILEGE

McDonald’s lawyers, Hawkins & Parnell partners H. Lane Young and Debra E. LeVorse, argue in their brief that the document was privileged and should not be released. Young was out of the office and could not be reached for comment; LeVorse declined to comment on pending litigation.

Their brief argues that there is a separate form of work-product privilege available even for documents that aren’t prepared in anticipation of litigation. The brief cited a nearly 30-year-old federal case, Virginia Electric & Power Co. v. Sunship Building and D.D. Co., 68 F.R.D. 397 (E.D. Va. 1975), saying, “Attorney work product should not be dependent on, and therefore confused with, the separate and distinct immunity afforded documents prepared ‘for trial’ or in ‘anticipation of litigation.’ The immunities, in fact are quite different.”

It also cites a treatise on Georgia civil procedure that says if an attorney has a separate qualified immunity as to his work product, he may assert that immunity even against his own client.

And the brief brings up the “end product standard,” a legal standard that divides ownership of documents in a file between an attorney and a client, and permits an attorney to protect his impressions and opinions, and retain certain work-product documents such as notes made to himself while preparing for trial.

Though the Court of Appeals rejected the end-product argument in its opinion, McDonald’s attorneys raised the point again, arguing in their brief that the memo contains McDonald’s impressions and opinions formed while defending Henry against Copeland’s motion for attorney fees, so those impressions should be protected.

Steven J. Kaminshine, associate dean and professor of law at Georgia State University, said he’s not aware of a protection offered for an attorney’s impressions and opinions if they weren’t gained in anticipation of litigation. He noted that the Georgia Supreme Court specifically said it would look at whether a document that wasn’t prepared in anticipation of litigation still could be privileged as work-product.

A document qualifies for work-product protection in part because it was prepared in anticipation of litigation, he said.

Casey, who co-wrote the brief arguing that Henry should get the memo, said, “It’s unclear whether or not Georgia employs such a dual standard, and it may be that that’s a question the high court wants to answer in this case.”