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A candid conversation between opposing counsel about the merits of a frivolous litigation claim has come back to haunt them. It’s not unusual for opposing counsel to exchange frank assessments of a case, as James T. McDonald Jr. and Wade K. Copeland did last fall. But the fallout from their conversation continues. That’s because McDonald happened to recount the conversation to his client, who just happens to be a lawyer. Now, Copeland, who filed the first frivolous litigation motion, is himself the subject of a frivolous litigation motion based on what he allegedly said. And McDonald is being sued by his client for breach of fiduciary duty for refusing to testify about what Copeland said. The dispute raises sticky issues about what to do when lawyers’ obligations to their clients collide with their sense of obligation to fellow members of the bar. Fulton Superior Court Judge Alice D. Bonner must decide whether McDonald, a partner with Atlanta’s Swift, Currie, McGhee & Hiers, must help his former client, Athens, Ga., sole practitioner J. Hue Henry, pursue sanctions for frivolous litigation against Copeland, a principal with Webb, Carlock, Copeland, Semler & Stair, also of Atlanta. Specifically, Henry wants McDonald to turn over a March 8 memo about the conversation and to testify. Henry v. Swift Currie, No. 2000CV26058 (Fult. Super. arg’d. Dec. 20, 2000). Copeland, Henry maintains, confessed to McDonald that he had pursued the frivolous litigation claim against Henry out of personal malice, all the while knowing it wouldn’t succeed. If true, that would bolster Henry’s own frivolous litigation claim against Copeland. Henry maintains that the memo is part of his client file and that he’s entitled to have it. And, he insists, as his lawyer, McDonald is duty-bound to assist him, rather than protect Copeland. But so far, McDonald has refused. “In my 30-some odd years of dealing with other lawyers, I have received and made some candid comments concerning cases and people,” McDonald wrote Henry in a March 21 letter. “I never conceived of any conversation I had with a fellow lawyer being published or ‘held against him or her’ in the future.” Discussing the conversation with Henry, he added, was in the context of the attorney-client relationship. Copeland says he didn’t pursue sanctions against Henry out of spite and never told McDonald that he had. In fact, he says, he didn’t tell McDonald anything different in private from what he maintained all along in the litigation — that Henry’s original suit, a contract dispute, was frivolous. Lawyers, Copeland says, ought to be able to talk frankly about their cases. “It’s just an unwritten rule about how you practice law.” He calls McDonald a “man of principle” standing up for his beliefs. The conversation at issue apparently occurred last fall during litigation concerning a health services contract. Henry was the plaintiff’s lawyer in the Gwinnett Superior Court case, while Copeland was the defense lawyer. Copeland won the case on summary judgment, but lost a motion seeking sanctions against Henry and his client for frivolous litigation. Gwinnett Superior Court Judge Michael C. Clark, in a Jan. 28, 2000, order, found that while Henry’s case wasn’t strong enough to survive summary judgment, sanctions for filing it weren’t in order. Barrett v. Quorum Health Resources, Inc., No. 97-A-6707. Once Henry prevailed on the frivolous litigation claim against him, he asked another lawyer, Robert B. Wedge of Atlanta’s Shapiro, Fussell, Wedge, Smotherman & Smith, to help him pursue sanctions for “Copeland’s cheap shot.” In a March 2, 2000, letter to Wedge, Henry wrote that Copeland’s statements to McDonald would be key to the success of any sanctions. At the end of that letter, copied to McDonald, he added that he was asking McDonald to forward a memo detailing Copeland’s “rather incriminating statements.” Apparently, McDonald prepared the memo on March 8, but didn’t send it to Wedge. Henry asked for it in a March 13 letter. CHANGE OF HEART? According to documents filed in the Fulton case, McDonald apparently considered giving Henry the memo, then thought better of it. On his copy of Henry’s March 13 letter, McDonald penned a note: “Send Henry memo in file — but let me see first.” That note is crossed out and “Nope” is written in and underlined. McDonald did recount the conversation with Copeland in an Oct. 8, 1999, letter to Henry’s insurance carrier. Copeland, he wrote, said the frivolous litigation issue had “cooled down a bit,” and said he suspected that it would not be successful. “He used the phrase ‘heat of the moment’ as a part of the impetus for filing the motion in the first place,” McDonald wrote. McDonald and Henry both appeared Wednesday before Bonner, the judge assigned to the breach of fiduciary duty suit, for arguments on the issue. McDonald’s attorney, Kristine B. Morain of Atlanta’s Hawkins & Parnell, asked Bonner to issue a protective order so her client wouldn’t have to testify or produce the memo. Morain said McDonald had told Henry the gist of Copeland’s remarks and Henry had construed them to mean that Copeland had filed out of spite. McDonald had indeed memorialized the conversation in a memo, but didn’t do so for Henry to use in litigation, Morain told the judge. A ruling that McDonald must release the memo and testify, she argued, will deter frank discussions between lawyers and “hamper civil litigation.” And, she added, it would tarnish McDonald’s reputation. “If he is forced to disclose those candid communications, not only Mr. Copeland, but all attorneys in town, will think twice about being candid with him,” Morain said. CLAIMING PRIVILEGE Henry’s lawyer at the hearing, Regina M. Quick, argued that McDonald couldn’t assert the attorney-client privilege in this situation, since the privilege belonged to Henry, the client. Instead, Quick said, McDonald was, in effect, asking Bonner to create a new “opposing counsel privilege,” which had no basis in law. Bonner had a question. When she was in practice, the judge said, and clients wanted their file, she didn’t give them her notes, her work product or her research. “I relied on no privilege,” Bonner said. “I didn’t know why except that it was mine. Do you say everything in the file belongs to the client?” Not necessarily, said Quick. But the memo at issue was prepared at Henry’s request, specifically for him to use in filing his claim against Copeland, she told the judge. Morain responded that McDonald’s fiduciary duty did not include assisting Henry in more litigation. McDonald had reduced the conversation to writing, “then thought better of it,” she said. “I think Mr. McDonald did the right thing.” A ruling requiring him to release the memo and testify, Morain insisted, would be a “bad precedent to set.” Bonner indicated she would rule after the holidays.

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