Until 2013, no court of last resort had ever addressed the issue of whether the attorney-client privilege shields communications between law firms and their in-house counsel regarding the potential liability to a current client. In that year, the Supreme Courts of Georgia and Massachusetts held that an intra-firm attorney-client privilege could shield such communications from discovery by a current client in a malpractice suit brought against the firm. Shortly after these holdings, the American Bar Association (ABA) adopted a resolution similarly advocating for courts to apply the attorney-client privilege to the intra-firm context. This Note contends that the recent case law and the ABA's proposal to recognize an intra-firm attorney-client privilege in this context fail to properly acknowledge and preserve the duty of loyalty and the duty to avoid conflicts that lawyers owe to clients. While this Note recognizes the need for an intra-firm privilege, it advocates that courts should adopt a current- client exception to the privilege, under which all intra-firm communications would be shielded from discovery except when they concern a malpractice suit brought by a current client. While the exception would offer lawyers and law firms a protection less than that afforded to ordinary citizens, this rule is necessary in order to uphold the integrity of the profession and to secure the trust that is so essential to the attorney-client relationship. Not only is this exception consistent with the principle that lawyers must be held to a higher standard, but also it will minimize structural bias between firms.
Sciavicco, Lindsey B.
"If You Can't Trust Your Lawyer, Who Can You Trust?: Why Conflicts of Interest and Client Loyalty Require an Exception to the Intra-firm Attorney-Client Privilege for Current Clients,"
Georgia Law Review: Vol. 48:
4, Article 7.
Available at: https://digitalcommons.law.uga.edu/glr/vol48/iss4/7