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Push for negligence advice to be privileged

Push for negligence advice to be privileged

By Jeffrey Jenkins

Legal profession representatives in the US are pressing for confidential law firm internal communications in negligence claims to be afforded privileged status as part of a potentially landmark case being heard in Georgia's top court.

The American Bar Association (ABA) has made amicus brief submissions in a case before the Georgia Supreme Court involving a professional malpractice matter.
At the crux of the case are internal commutations at Savannah-based Hunter Maclean, one of the oldest firms in the state, which is being sued for negligence by a local property developer. In forming its defence, the firm took advice from its own in-house counsel in relation to that claim, and is asking the court to grant that communication as privileged.

Ethical duties

According to the ABA Journal, the association says in its amicus submission that ‘lawyers, like other clients, need the ability to obtain confidential legal advice in order to comply with the law and, unlike most clients, to comply with their ethical obligations. Lawyers face an increasing array of legal and ethics duties, and the availability of in-house advice, without the cost or inconvenience of seeking an outside lawyer, encourages lawyers to pursue internal investigations where questions of misconduct or malpractice arise.’
The brief – which is signed by ABA President Laurel Bellows – goes on to point out that many US law firms have a ‘designated in-house counsel’, with role becoming increasingly relevant as lawyers ‘face an increasingly complex array of legal and ethical duties arising from complicated regulatory regimes, changes in rules of professional conduct, and heightened disclosure obligations under a range of legislation, including Sarbanes-Oxley’.

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