The attorney-client privilege is generally held out as a sacred instrument (a shield) reserved for clients and used by attorneys for the benefit of those clients. Persons untrained in the law tend to have a basic understanding of what the attorney-client privilege is and can often explain in a rudimentary sense what it protects. What few non-lawyers realize, however, is that the privilege is not absolute, and is waivable under certain, limited, circumstances. Now, it seems that shield is losing its integrity in the realm of legal malpractice.
In January 2020, the Georgia Supreme Court ruled in Hill, Kertscher & Wharton v. Moody that where a client sues a former firm for legal malpractice, the waiver of attorney-client privilege, also known as the “offensive use” doctrine, applies to third parties, unnamed firms, and other lawyers that represented the malpractice plaintiff in the underlying litigation or transaction, and not just the firm being sued. At first glance Hill seems to be a sweeping ruling, applying to any and all lawyers or firms involved in a legal malpractice suit. In reality, Hill is a narrow decision that seriously implicates the Georgia Supreme Court’s reaffirmation that attorney-client privilege may be waived by former clients that put prior representation at issue. The decision strengthens a powerful defensive mechanism in the defendant-attorney’s arsenal when they become the target of malpractice litigation. At first glance readers may fall into a trap, assuming that Hill dramatically expands the third-party waiver of attorney-client privilege. However, a close reading of Hill shows that the Georgia Supreme Court actually reaffirms and bolsters the third-party waiver as factually dependent, while upholding the purpose of the attorney-client privilege and protecting Georgia attorneys. The decision in Hill has flown under the radar, but should be viewed under a microscope, and reviewed by evidence and legal ethics scholars, not only in the state of Georgia, but across the United States.
D. Garrett White, Casenote, Sword and Shield: The Georgia Supreme Court Adopts Third-Party Waiver of Attorney-Client Privilege, 72 Mercer L. Rev. 1465 (2021), https://digitalcommons.law.mercer.edu/jour_mlr/vol72/iss5/8/.