Intra Law Firm Communications Regarding Questionable Attorney Conduct

Abstract

When questions are raised regarding a law firm attorney’s representation of a firm client, the questioned attorney often wishes to seek legal counsel. A conferral will often benefit the attorney, the firm and the client. Conferences regarding questioned conduct should be encouraged, not discouraged. To encourage these beneficial conferrals, a broad attorney-client communication privilege and a broad work product protection (or privilege) should be available. Availability should not be dependent upon whether in-house, outside or other legal counsel are employed. While earlier federal precedents were split regarding the availability of the attorney-client communication privilege in the in-house counsel setting, increasingly therein the privilege is recognized by state high courts. As well, work product protections should also often be available to legal counsel advising questioned attorneys. Because of current federal-state and interstate differences in the two immunities from compelled involuntary disclosure, however, conferring legal counsel and questioned attorneys must proceed cautiously.

Keywords: privilege, work product, attorney-client communication, attorney-client privilege, in-firm counsel, client, attorney professional conduct, legal ethics, lawyer professional responsibility, evidence, pretrial discovery, in-house counsel, Upjohn, Crimson Trace, RFF, Garvy, St. Simmons Waterfront