IN THE SUPREME COURTSTATE OF GEORGIA

ST. SIMONS WATERFRONT, LLC, )Appellant, )

)v. )

))

HUNTER, MACLEAN, EXLEY & )DUNN, P.C., )

Appellee )

Case No.S12G1924

BRIEF OF AMICUS CURIAE ASSOCIATION OFPROFESSIONAL RESPONSIBILITY LAWYERS

HARRY H. HARKINS, JR.Georgia Bar No. 32635591 Avery Drive NEAtlanta, Georgia 30309

TABLE OF CONTENTS

Page

I. Introduction l

II. Statement of Identity and Interest.. 2

III. Argument 3

A. Law Firm In-House Counsel Serve a Valuable Function, andConsultations of Law Firm Personnel Seeking Legal Services fromthe Firm's Regularly Designated Counsel Are Privileged, UnlessThere Is Some Special Basis For An Exception To The Privilege 3

B. The Firm's Knowledge of a Potentially Viable Claim by a CurrentClient Creates a Conflict with That Client and, to the Extent ThatSuch Consultations Involve Ways That the Firm Might DefendAgainst Such a Claim, They Implicate That Conflict 8

C. Such a Conflict Does Not Create an Exception to the Attorney-ClientPrivilege, At Least So Long As the Client Is Appropriately andPromptly Informed of the Potential Claim 11

IV. Conclusion 17

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TABLE OF AUTHORITIES

Page(s)CASES

Asset Funding Group, LLC v. Adams & Reese, LLP,2008 WL 4948835, *4,2008 U.S. Dist. LEXIS 96505, *( (E.D. La. Nov. 17,2008) 12

E-Pass Technologies, Inc. v. Moses & Singer, LLP,2011 WL 3794889, *3,2011 U.S. Dist. LEXIS 96231, *9-10(N.D. Cal. Aug. 26, 2011) 12

Eureka Investment Corp. v. Chicago Title Insurance Co.,Eureka Inv. Corp. v. Chicago Title Ins. Co., 743 F.2d 932 (D.C. Cir. 1984) l3-15

Hertzog, Calamari & Gleason v. Prudential Ins. Co. of Am.,850 F. Supp. 255, 255 (S.D.N.Y. 1994) 7

In re Sunrise Sec. Litig.,130 F.R.D. 560,595 (E.D. Pa. 1989) 12

In re Teleglobe Comm 'c 's Corp.,493 F.3d 345 (3rd Cir. 2007) 15-16

Koen Book Distribs. v. Powell, Trachtman, Logan, Carrie, Bowman & Lombardo, P.C.,212 F.R.D. 283,286 (E.D. Pa. 2002) 12

Lama Holding Co. v. Shearman & Sterling,1991 U.S. Dist. LEXIS 7987, at *3 (S.D.N.Y. June 14,1991) 7

Nesse v. Pittman,206 F.R.D. 325, 331 (D.D.C. 2002) 7

SonicBlue Claims LLC v. Ports ide Growth & Opportunity Fund (In re SONICblue Inc.),Adv. No. 07-5082,2008 WL 170562, *9,2008 Bankr. LEXIS 181, *27-28 (Bankr.N.D. Cal. Jan. 18, 2008) 11, 12, 13

United States v. Rowe,96 F.3d 1294 (9th Cir. 1996) 6-7

Upjohn v. United States, 449 U.S. 383,394 (1981) 6

VersusLaw, Inc. v. Stoel Rives, L.L.P., 127 Wn. App. 309 (2005) 12

OTHER AUTHORITIES

ABA COMM.ONETHICS& PROF'LRESP.,FORMALOP. 08-453 8-10

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Benjamin P. Cooper, The Lawyers's Duty To Inform His Client of His Own Malpractice,61 BAYLOR L. REv. 174 (2009) 10

Douglas R. Richmond, Law Firm Internal Investigations: Principles & Perils, 54SYRACUSE L. REv. 69, 100-01 (2004) 12

Elizabeth Chambliss & David B. Wilkins, The Emerging Role of Ethics Advisors,General Counsel, and Other Compliance Specialists in Large Law Firms, 44 ARIZ. L.REv. 559 (2002) 4

Elizabeth Chambliss, The Professionalization of Law Firm In-House Counsel, 84 N.C.L.Rev. 1515 (2006) 4

Elizabeth Chambliss, The Scope of In-Firm Privilege, 80 NOTRE DAME L. REv. 1721(2005) 4, 5, 6, 12

GA. SUP. CT. R. 23 1

ILL. ADVISORY ETHICS OP. 94-13,1995 WL 874715 (Jan. 1995) 13

N. Y. ETHICS OP. 789,2005 WL 3046319 (Oct. 26,2005) 9

Peter R. Jarvis & Mark J. Fucile, Inside an In-House Legal Ethics Practice 14 NOTREDAME J.L. ETHICS & PUB. POLICY 103 (2000) .4

RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (2000) 3

Id.§6 11

Id. § 46 13

Id. § 68 6

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I. Introduction

Pursuant to Georgia Supreme Court Rule 23 and the grant of certiorari on

November 27,2012 in Hunter, Maclean, Exley & Dunn v. Sf. Simons Waterfront,

LLC, 317 Ga. App. 1 (2012) ("Hunter"), the Association of Professional

Responsibility Lawyers ("APRL") respectfully submits this Amicus Curiae brief to

address the question that this Court asked to be briefed:

What rules govern a law firm's assertion ofattorney-client privilege and work product doctrine toprevent disclosure of communications and documentswith in-house counsel to its former client in a legalmalpractice action?

In this brief, APRL argues that (1) law firm in-house counsel serve a

valuable function and, as with other organizational lawyers, consultations of law

firm personnel seeking legal services from the firm's regularly designated counsel

are privileged unless there is some special basis for an exception to the privilege;

(2) the firm's knowledge of a possible claim by a current client creates a conflict

with that client and, to the extent that such consultations involve ways that the firm

might defend against such a claim, they implicate that conflict; but (3) such a

conflict does not create an exception to the attorney-client privilege, at least so

long as the client is appropriately and promptly informed of the potential.

APRL takes no position on the facts of this case or on what the record does

or does not show. APRL takes no position on whether, in light of whatever the

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facts may be and in light of this court's analysis of other legal issues, discovery

should be granted in this case.

II. Statement of Identity and Interest

APRL membership encompasses lawyers who provide services in all aspects

of legal ethics and professional responsibility. In addition to respondents' counsel

work, APRL lawyers also represent and advise lawyers and law firms on ethics and

professional responsibility, risk management, legal malpractice, and the law of

lawyering. APRL also numbers academics and judges among its members. APRL

remains the largest organization of lawyers primarily representing other lawyers in

disciplinary proceedings. It has over 500 members world wide.

APRL and its members are passionate about professional responsibility and

together they share their experiences, insights and expertise. APRL marshals the

talent, energy and perspectives of its members to bring about positive change in the

areas of legal ethics and the law of lawyering. It also issues public statements and

files amicus briefs.

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III. Argument

A. Law Firm In-House Counsel Serve a Valuable Function, andConsultations of Law Firm Personnel Seeking Legal Services from theFirm's Regularly Designated Counsel Are Privileged, Unless There IsSome Special Basis For An Exception To The Privilege. I

Today's lawyers operate in an increasingly complex legal environment, one

with increased risks of liability, disqualification, discipline and sanctions based on

an increasing volume of statutes, rules, cases and other forms of ethical and legal

guidance. The law of lawyering has become a recognized specialty, worthy of its

own Restatement.2 As a result, lawyers themselves increasingly need legal advice

to guide them in their practices on behalf of their own clients. The very existence

of APRL and kindred organizations, such as the American Bar Association Center

for Professional Responsibility reflects the increasing need for lawyers who advise

lawyers.

Larger firms (not necessarily ones that would be considered "large" in an

absolute sense) have responded by hiring or designating lawyers as in-house

I Law firms may also form ad hoc attorney-client relationships with firm lawyersnot regularly designated as in-house counsel. But the circumstances in which thiscan be claimed are diverse and may raise special legal or factual questions. So,APRL takes no position on when communications with lawyers with such ad hocrelationships are privileged.2 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (2000).

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counsel to the firm. Professor Elizabeth Chambliss has studied and documented

this development.' She reports that:

firms increasingly are hiring their own in-house counselto provide day-to-day ethics advice, monitor internalpolicies and procedures, and respond to potential andactual malpractice claims against the firm ....

Most observers view law firms' increasing relianceon in-house counsel as a positive development. Inaddition to improving risk management and lowering thecost of liability insurance, the presence of firm counselmay improve the ethical climate of the firm. Althoughthe role of firm counsel varies significantly from law firmto law firm, at its most robust it includes a wide range ofproactive, compliance-oriented activities, such asreviewing firm policies and procedures, conductinglawyer and nonlawyer ethics training, and going door todoor to invite questions from firm members. Suchactivities may contribute enormously to firm-widecompliance with professional regulation."

She concludes that "firm counsel tend to be strongly committed to ethics and

regulatory cornpliance'" and "[p Jrofessional firm counsel contribute enormously to

effective self-regulation by firms.,,6 The ready availability of in-house counsel

3 Elizabeth Chambliss, The Professionalization of Law Firm In-House Counsel, 84N.C. L. Rev. 1515 (2006); Elizabeth Chambliss & David B. Wilkins, TheEmerging Role of Ethics Advisors, General Counsel, and Other ComplianceSpecialists in Large Law Firms, 44 ARIz. L. REv. 559 (2002). See also Peter R.Jarvis & Mark J. Fucile, Inside an In-House Legal Ethics Practice, 14 NOTREDAMEJ.L. ETHICS& PUB.POLICY103 (2000).4 Elizabeth Chambliss, The Scope of In-Firm Privilege, 80 NOTREDAMEL. REv.1721,1721-22 (2005).5 84 N.C. L. Rev. at 1520.6 Id. at 1568.

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"encourages lawyers to raise questions that they might otherwise igncre.r" It is

therefore in the public interest for the law to encourage and facilitate the use of law

firm in-house counsel.

The advantages of in-house counsel in promoting legal compliance are

simply one example of the advantages of legal advice to all kinds of clients in

achieving that result. One mechanism that the law has long used to support the

ability and willingness of clients to seek advice is the attorney-client privilege. As

the Restatement explains:

The rationale for the privilege is thatconfidentiality enhances the value of client-lawyercommunications and hence the efficacy of legal services.The rationale is founded on three related assumptions.First, vindicating rights and complying with obligationsunder the law and under modern legal processes arematters often too complex and uncertain for a personuntrained in the law, so that clients need to consultlawyers. The second assumption is that a client whoconsults a lawyer needs to disclose all of the facts to thelawyer and must be able to receive in returncommunications from the lawyer reflecting those facts. Itis assumed that, in the absence of such frank and fulldiscussion between client and lawyer, adequate legalassistance cannot be realized. Many legal rules arecomplex and most are fact-specific in their application.Lawyers are much better situated than nonlawyers toappreciate the effect of legal rules and to identify factsthat determine whether a legal rule is applicable. Fulldisclosure by clients facilitates efficient presentation attrials and other proceedings and in a lawyer's advisingfunctions.

780 NOTRE DAME L. REv. at 1757.- 5 -

The third assumption supporting the privilege is ...that clients would be unwilling to disclose personal,embarrassing, or unpleasant facts unless they could beassured that neither they nor their lawyers could be calledlater to testify to the communication. Relatedly, it isassumed that lawyers would not feel free in probingclient's stories and giving advice unless assured that theywould not thereby expose the client to adverseevidentiary risk. Those assumptions cannot be tested butare widely believed by lawyers to be sound. Theprivilege implies an impairment of the search for truth insome instances. Recognition of the privilege reflects ajudgment that this impairment is outweighed by thesocial and moral values of confidential consultations. Theprivilege provides a zone of privacy within which a clientmay more effectively exercise the full autonomy that thelaw and legal institutions allow.8

To further these ends, the privilege must extend to communications between

an in-house lawyer, acting as counsel for a corporation, and individual corporate

employees." Indeed, the Supreme Court recognized that the privilege was

particularly important in the corporate context, in light of the corporation's need to

comply with a "vast and complicated array of regulatory legislation.?" That is

equally true of noncorporate organizations, such as law firms.

As many courts have recognized, communications between attorneys in a

law firm and the firm's in-house counsel are privileged. In United States v.

Rowe, II the Ninth Circuit held that attorneys at a law firm may function as "in-

8 RESTATEMENT(THfRD) OFTHELAW GOVERNINGLAWYERS,§ 68, cmt. c (2000).9 See Upjohn v. United States, 449 U.S. 383, 394 (1981) (citation omitted).10 d1 . at 392.II United States v. Rowe, 96 FJd 1294 (9th Cir. 1996).

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house counsel," and that their communications are protected by the privilege. 12 As

another court succinctly stated, "[n]o principled reason appears for denying [the]

attorney-client privilege to a law partnership which elects to use a partner or

associate as counsel of record[.]" 13

Several courts have recognized that a law firm can invoke the attorney-client

privilege against former clients (who were not being represented at the time of the

consultation). For example, in Nesse v. Pittmanl" a federal district court held that

a former client could not discover internal attorneys' notes, because when an

attorney "is talking to a lawyer for the organization, who has an obligation to

represent that organization competently, the privilege [applies] so as to encourage

that client to be as candid as possible when she speaks to the lawyer." Similarly, in

Lama Holding Co. v. Shearman & Sterling, 15 the court held that because "[i]t is

undisputed that an attorney-client relationship can exist within a law firm," a firm

need not produce timesheets that reflected conversations between the firm's

attorneys and in-house counsel.

12Id. at 1296.13 Hertzog, Calamari & Gleason v. Prudential Ins. Co. of Am., 850 F. Supp. 255,255 (S.D.N.Y. 1994).14 Nesse v. Pittman, 206 F.R.D. 325, 331 (D.D.C. 2002),15 Lama Holding Co. v. Shearman & Sterling, 1991 U.S. Dist. LEXIS 7987, at *3(S.D.N.Y. June 14, 1991).

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The issue in this case is whether there is some special exception to these

familiar principles when firm personnel consult in-house counsel regarding issues

raised by representation of a still-current client.

B. The Firm's Knowledge of a Potentially Viable Claim by a CurrentClient Creates a Conflict with That Client and, to the Extent That SuchConsultations Involve Ways That the Firm Might Defend Against Sucha Claim, They Implicate That Conflict.

Many consultations with in-house counsel, even regarding the representation

of a current client involve nothing even arguably contrary to the interest of the

client. For example, the interests of another client might become implicated in

some way, requiring assessment of whether that implication creates a conflict.

Advice might be sought on the propriety of conduct by counsel for another party.

When there is no conflict, there is no need to consider what effect a conflict would

have on the privilege.

An American Bar Association opinion concludes that there is no conflict

implicated by any consultation directed to ascertaining and prospectively

complying with the ethical and legal obligations of the firm and its personnel:

A lawyer's effort to conform her conduct toapplicable ethical standards is not an interest that willmaterially limit the lawyer's ability to represent theclient. On the contrary, "it is inherent in thatrepresentation and a required part of the work of carryingout the representation. It is, in other words, not an interestthat 'affects' the lawyer's exercise of independentprofessional judgment, but rather is an inherent part ofthat judgment." For example, a lawyer who is asked by aclient to undertake a course of action that the lawyer

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fears might be criminal or fraudulent would be well-advised to consult with in-house ethics counsel on thepropriety of following the client's direction. Although thelawyer has an interest in avoiding conduct that willviolate her own ethical duties, the consultation alsoserves the legitimate purpose of enabling the lawyer toadvise a firm client about the legality and wisdom of theproposed course of action and about other availableoptions. In situations such as this, where the lawyer isseeking prophylactic advice to assist in her representationof the client, there is no significant risk that the lawyer'sability to consider, recommend, or carry out anappropriate course of action for the client will bematerially limited by the lawyer's interest in avoidingh· I' d 16et ica miscon uct.

Usually, consultations with in-house counsel involve, at a minimum, an

assessment phase, in which counsel determines relevant facts, identifies what sorts

of legal problems they create, and determines what, if any, legal and ethical

obligations the firm a and its personnel have as a result of those facts. Under the

reasoning of the ABA opinion, such an assessment involves no conflict and creates

no reason to consider any possible exception to the privilege. SSW apparently

agrees on that point, but seeks disclosure of internal law firm communications

going beyond the initial assessment.l"

16 ABA COMM.ONETHICS& PROF'L Rssr., FORMALOP. 08-453, at 2-3 (footnotesomitted). Accord N.Y. Ethics Op. 789, 2005 WL 3046319, at 12 (Oct. 26, 2005)("[a] lawyer's interest in carrying out the ethical obligations imposed by the Codeis not an interest extraneous to the representation of the client. It is inherent in thatrepresentation and a required part of the work in carrying out the representation .... It is too much a part of the fabric and tradition of legal practice to require specificdisclosure and consent.").17 Brief of Appellant, 27-30.

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Different considerations come into play if the firm concludes that a client

may have a malpractice claim against it:

Consent of the client is not required before a lawyerconsults with in-house ethics counsel, nor must the clientbe informed of the consultation after the fact. Theconsultation does not give rise to a per se conflict ofinterest between the firm and its client, although apersonal interest conflict will arise if the principal goal ofthe ethics consultation is to protect the interest of theconsulting lawyer or law firm from the consequences of afirm lawyer's misconduct. In that event, therepresentation may continue only if the client gives. ~ d 18inrorme consent.

Indeed, a known potentially viable claim by the client against the firm

creates a conflict, and the client must be informed of the possible claim and the

adversity created thereby. 19 Informed client consent is required for continued

representation (except as court rules may require court permission to terminate the

representation), whether or not the firm is also seeking to protect itself from the

consequences of any arguable past error or misconduct.

18 ABA COMM. ONETHICS & PROF'L Rsse., FORMAL OP. 08-453, at 6.19 See, e.g., Benjamin P. Cooper, The Lawyers's Duty To Inform His Client of HisOwn Malpractice, 61 BAYLOR L. REv. 174 (2009).

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C. Such a Conflict Does Not Create an Exception to the Attorney-Client Privilege, At Least So Long As the Client Is Appropriately andPromptly Informed of the Potential Claim.20

The Restatement lists many possible remedies for a lawyer's breach of duty

to a client:

(1) awarding a sum of money as damages;

(2) providing injunctive relief, including requiringspecific performance of a contract or enjoining itsnonperformance;

(3) requiring restoration of a specific thing or awarding asum of money to prevent unjust enrichment;

(4) ordering cancellation or reformation of a contract,deed, or similar instrument;

(5) declaring the rights of the parties, such as determiningthat an obligation claimed by the lawyer to be owed tothe lawyer is not enforceable;

(6) punishing the lawyer for contempt;

(7) enforcing an arbitration award;

(8) disqualifying a lawyer from a representation;

(9) forfeiting a lawyer's fee;

(10) denying the admission of evidence wrongfullyobtained;

(11) dismissing the claim or defense of a litigantrepresented by the lawyer;

20 APRL takes no position on whether the rule might be different were the clientnot appropriately and promptly informed of the potential claim, as was the case inSonicBlue Claims LLC v. Ports ide Growth & Opportunity Fund (In re SONICblueInc.), Adv. No. 07-5082,2008 WL 170562,2008 Bankr. LEXIS 181 (Bankr. N.D.Cal. Jan. 18, 2008).

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(12) granting a new trial; and

(13) entering a procedural or other sanction."

None of the remedies listed includes forfeiture of an otherwise available

attorney-client privilege. On the other hand, a number of cases say that the

privilege for consultations with law firm in-house counsel will be lost if that

counsel has a conflict (at least by imputation) due to the involvement of a possible

I· b . fi I' 22 S di 23calm y an ongoing irm c lent. orne commentators isagree.

21 RESTATEME T (THIRD) OFTHELAW GOVERNINGLAWYERS,§ 6 (2000).22 See E-Pass Technologies, Inc. v. Moses & Singer, LLP, 2011 WL 3794889, *3,2011 U.S. Dist. LEXIS 96231, *9-10 (N.D. Cal. Aug. 26, 2011) (denying privilegeon ground that firm had a conflict in separately representing itself on sanctionsmotion directed at both firm and client); Asset Funding Group, LLC v. Adams &Reese, LLP, 2008 WL 4948835, *4, 2008 U.S. Dist. LEXIS 96505, *( (E.D. La.Nov. 17, 2008) (privilege "vitiated" when "the seeking of legal advice by onelawyer from another lawyer inside the firm' implicates or creates a conflict ofinterest. "'); Koen Book Distribs. v. Powell, Trachtman, Logan, Carrle, Bowman &Lombardo, P.C., 212 F.R.D. 283,286 (E.D. Pa. 2002) (neither privilege nor workproduct immunity can "shield a lawyer's papers from discovery in a conflict ofinterest context."); In re Sunrise Sec. Litig., 130 F.R.D. 560, 595 (E.D. Pa. 1989)("[W]hen a law firm seeks legal advice from its in house counsel, the law firm'srepresentation of itself (through in house counsel) might be directly adverse to, ormaterially limit, the law firm's representation of another client, thus creating aprohibited conflict of interest."); SonicBlue Claims LLC v. Portside Growth &Opportunity Fund (In re SONICblue Inc.), Adv. No. 07-5082,2008 WL 170562,*9,2008 Bankr. LEXIS 181, *27-28 (Bankr. N.D. Cal. Jan. 18, 2008) (relying onconflict created by firm's self-representation). The issue was discussed, withoutreaching a decision, beyond remanding for more fact finding, in VersusLaw, Inc. v.Stoel Rives, L.L.P., 127 Wn. App. 309 (2005).23 Elizabeth Chambliss, The Scope of In-Firm Privilege, 80 NOTREDAMEL. REv.1721, 1766 (2005); Douglas R. Richmond, Law Firm Internal Investigations:Principles & Perils, 54 SYRACUSEL. REv. 69,100-01 (2004) (footnotes omitted).("To be sure, a firm that attempts to continue to represent a client in a matter afterbeing threatened with malpractice liability or otherwise being accused of

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Apart from the cases involving law firm in-house counsel, there do not

appear to be any cases imposing loss of privilege as a remedy for a lawyer's

conflict or other breach of duty. And there is weighty authority, in other contexts,

holding that existence of a conflict does not result in loss of the privilege.

Notably, the Restatement allows a law firm to assert the privilege against a

client that was being represented at the time of the consultation:

[a] lawyer may refuse to disclose to the client certainlaw-firm documents reasonably intended only for internalreview, such as a memorandum discussing whether alawyer must withdraw because of the client's misconductor the firm's possible malpractice liability to the client.The need for lawyers to be able to set down theirthoughts privately in order to assure effective andappropriate representation warrants keeping suchdocuments secret from the client involved."

In Eureka Investment Corp. v. Chicago Title Insurance CO}5 Eureka's

regular counsel (Fried, Frank) was jointly representing Eureka and Eureka's title

insurer in defending against a suit based on local legislation granting tenants

certain rights in condominium conversions. Eureka wanted to settle and proceed

misconduct may suffer a disqualifying conflict of interest. But the consequences ofthe firm's conflict of interest ought to be limited to its withdrawal from therepresentation and the financial detriment that surely accompanies the cessation ofwork for the client; the disgorgement or forfeiture of fees earned in therepresentation, perhaps enhanced tort liability, disciplinary action againstdeserving lawyers by the appropriate professional authorities, or somecombination of these" (footnotes omitted)).24 RESTATEMENT(THIRD) OFTHELAW GOVERNrNGLAWYERS,§ 46 cmt. c (2000);accord ILL. ADVISORYETHICSOP. 94-13,1995 WL 874715, at *4 (Jan. 1995)(quoting draft of the RESTATEMENT).]25 Eureka Inv. Corp. v. Chicago Title Ins. Co., 743 F.2d 932 (D.C. Cir. 1984).

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with the conversion, but the insurer wanted to defend. Counsel aided Eureka in

settling, and Eureka sued the insurer to require it to pay the settlement. The insurer

sought discovery of counsel's consultations with Eureka while counsel was also

representing the insurer. The D.C. Circuit denied relief.

It relied on the Wigmore treatise, which it found to state two relevant

principles. First, "'a communication by A to X as the common attorney of A and

B, who afterwards become party opponents, is not privileged as between A and B

since there was no secrecy between them at the time of communication. ",26 But

Eureka was governed by the second principle:

[a] communication by A to X as A's attorney, X beingthen also the attorney ofB, now become the partyopponent, is ordinarily privileged because of the relationof X toward A. Nor does the fact of A's knowledge thatX is already B's attorney, nor the fact ofB's being alreadyadversely interested destroy the privilege. This is sobecause, although X ought not to undertake to act forboth in any matter where there is a possibility of adverseinterests, nonetheless A is protected by reason of theI· 27re ation.

The court reasoned:

First, Wigmore's first principle presupposes theabsence of secrecy between the parties at the time ofcommunication. Here, although there was no secrecywith respect to the defense of tenant claims, Eurekaassuredly was concealing from CTI its consideration of

26Id. at 936-37 (quoting J. WIGMORE,EVIDENCE, § 2312, at 603-09 (McNaughtonrev, ed 1961 )).27Id. at 936-37 (quoting J. WIGMORE,EVIDENCE, § 2312, at 603-09 (McNaughtonrev, ed 1961)).

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legal action against the latter. Second, and closelyrelated, Wigmore's first principle presupposes that thecommunication at issue was made in the course of theattorney's joint representation of a "common interest" ofthe two parties. Here, although Fried, Frank wasrepresenting Eureka and CTI in a matter of commoninterest at the time the communications at issue weremade, those communications were not made in the courseof its representation on that matter; indeed, they weremade in the course of representation distinctly not in theinterest of CTI. The policy behind Wigmore's firstprinciple-to encourage openness and cooperationbetween joint clients-does not apply to matters known atthe time of communication not to be in the commoninterest of the attorney's two clients."

The D.C. Circuit thus sustained the privilege despite the existence of a

conflict, a conflict known to both Eureka and Fried, Frank.

A similar result was reached in In re Teleglobe Communications Corp.,29 a

dispute between a now-bankrupt parent, Teleglobe and its former parent, Bell

Canada Enterprises ("BCE"). BCE's in-house counsel had advised by Teleglobe

and BCE on various matters of common interest. But it advised BCE alone on

possible cessation of funding for Teleglobe's projects, a cessation that led to the

bankruptcy. Teleglobe obtained an order compelling discovery of counsel's advice

on cessation of funding, but the Third Circuit reversed, following Eureka and

reasoning that "when an attorney errs by continuing to represent two clients despite

28Id.

29 In re Teleglobe Comm'c's Corp., 493 FJd 345 (3rd Cir. 2007).- 15 -

their conflicts, the clients--who reasonably expected their communications to be

secret--are not penalized by losing their privilege.v'"

Cases concluding that existence of a conflict between a law firm and its

then-current client precludes assertion of the privilege are poorly reasoned: they

offer no analysis from the law of privilege supporting that result, nor do they offer

any authority (other than themselves) supporting such a remedy based in the law of

conflicts of interest. All of those cases are from federal district or bankruptcy

courts. They are contrary to well-reasoned authority from two federal courts of

appeals. This court ought to reject the former cases and follow the latter on this

point.

30 I d. at 381.- 16 -

IV. Conclusion

APRL urges this Court to hold that, even where law firm in-house counsel

has a conflict in rendering advice to the firm or its personnel regarding a

potentially viable claim by a current client, such a conflict does not create an

exception to the attorney-client privilege, at least so long as the client is

appropriately and promptly informed of the potential claim.

S:IHARRY H. HARKINS, JR.Harry H. Harkins, Jr.Georgia Bar No. 32635591 Avery Drive NEAtlanta, Georgia 30309(404) 874-9900harryharkins@comcast.net

William T. BarkerSNR Denton, U.S., LLP233 S. Wacker Dr., Suite 7800Chicago IL 60606(312) 876-8140william. barker@snrdenton.com

Attorneys for Amicus CuriaeAssociation of Professional ResponsibilityLawyers

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Certificate of Service

I hereby certify that I have served the foregoing Brief of Amicus Curiae

Association of Professional Responsibility Lawyers upon counsel for Appellant

and Appellee by placing said document in the United States Mail with proper

postage affixed thereto and properly addressed as:

Benjamin Joseph Colson, Esq.Susan Warren Cox, Esq.Edenfield, Cox, Bruce & ClassensPOBox 1700Statesboro, Georgia 30459

John Gilbert Nelson, EsqWeissman, Nowack, Curry & WilcoOne Alliance Center, 4th Floor3500 Lenox Road NEAtlanta, Georgia 30326

S:IHARRY H. HARKINS, JR.Harry H. Harkins, Jr.Attorney for Amicus Curiae

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