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Nothing good would come from forcing a lawyer to reveal what opposing counsel said during a candid conversation, a Fulton County, Ga., judge has ruled. Compelling such disclosure, concluded Fulton Superior Court Judge Alice D. Bonner, would mean that “lawyers will cease the practice of engaging in candid discussions with opposing counsel in an effort to resolve law suits short of trial.” In a ruling that pitted lawyers’ obligations to clients against their sense of obligation to fellow members of the bar, Bonner wrote in a Feb. 13 order that continued litigation over lawyers’ statements or motivations served no good purpose for either clients or counsel. Bonner declined to require Swift, Currie, McGee & Hiers partner James T. McDonald Jr. to reveal the contents of a conversation he had last year with courtroom opponent Wade K. Copeland. She granted McDonald a protective order, freeing him from the obligation to produce a memo memorializing the conversation. And she urged the parties to end the dispute. “The time to end this matter and move on to the next is now,” she wrote. Henry v. Swift, Currie, No. 2000CV26058 (Fult. Super. Feb. 13, 2001). Frank give-and-take on the merits of a case between opposing counsel is not unusual. But in this case, the fallout from the conversation between Copeland and McDonald, about the merits of a frivolous litigation motion, has spawned even more litigation. That’s because McDonald happened to recount the conversation to his client, J. Hue Henry, who just happens to be a lawyer. HOW DISPUTE STARTED 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 and then filed a motion seeking sanctions against Henry and his client for frivolous litigation. McDonald entered the case to defend Henry in the sanctions motion, which Henry won. That’s when McDonald and Copeland allegedly exchanged frank assessments about the motion’s merits. Henry said McDonald told him that Copeland admitted that he had pursued sanctions against Henry just for spite, knowing that he wouldn’t win. If true, Henry reasoned, he had a valid claim for frivolous litigation sanctions against Copeland, a claim he promptly filed. Copeland, a partner with Webb, Carlock, Copeland, Semler & Stair, has denied making any such statement. Henry pressed McDonald to help him pursue Copeland, but McDonald 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.” When McDonald wouldn’t cooperate by producing a March 8 memo that allegedly memorialized the conversation with Copeland, Henry sued his former lawyer for breach of fiduciary duty. He argued that the memo was part of his client file and he was entitled to have it. And, he insisted, McDonald, as his lawyer, was duty-bound to assist him, not to protect Copeland. WHO OWNS LAWYER’S FILE? As Bonner saw it, “This dispute is about who owns a lawyer’s file, the lawyer or the client.” And no Georgia appellate cases address whether a client owns his or her lawyer’s notes, Bonner noted. But, she wrote, case law does address a privilege, whether absolute or conditional, for statements made during litigation, and the public policy behind that privilege. In Atlanta News Publishing Co. v. Medlock, 123 Ga. 714 (1905), the Georgia Supreme Court held that statements accorded a conditional privilege included “comments of counsel fairly made on the circumstances of the case and the conduct of parties in connection therewith.” Such a privilege, Bonner wrote, “furthers the public policy of supporting candor and full disclosure in legal disputes so that they can reach ultimate resolution and closure. “Parties, attorneys and witnesses who are concerned with potential liability for the things they say in suits are less likely to be open and candid. Likewise, the candor and open communications between opposing attorneys during litigation serves the public policy of informed parties and early resolution of disputes.” Lawyers who can’t express themselves freely without fear of repercussion, Bonner added, will be hampered in their representation. Such public policy is particularly important in post-litigation disputes over fees, she wrote, which often “serve only the interests of lawyers, as opposed to their clients.” Bonner wrote that she could not determine if either Copeland’s or Henry’s pursuit of sanctions was brought with improper motive. “What the Court can say is that it serves no useful purpose for the parties to a law suit that is over to continue to litigate to recover an ever-diminishing return. And what the Court can say is that no useful purpose is served by forcing Mr. McDonald to disclose a summary of candid conversations he had with opposing counsel,” she wrote. “The Court can think of no client’s interest that is served by continued litigation about lawyers’ statements and motivations that is totally peripheral to the legitimate disputes that gave rise to the underlying law suit.” And, she added, it was clear that, were Henry to succeed, “the implications for future attorneys and their clients are chilling: disgruntled clients will seek to review their lawyers’ notes to see if there are grounds of malpractice claims; lawyers will cease documenting files with information helpful to their handling of their clients’ cases; and, most important, lawyers will cease the practice of engaging in candid discussions with opposing counsel in an effort to resolve law suits short of trial.” McDonald’s attorney, Kristine B. Morain of Hawkins & Parnell, says her client was pleased with the ruling, particularly its emphasis on the public policy behind the decision. Henry’s lawyer, Regina M. Quick of Athens, Ga., says she and her client obviously disagree with the ruling, but are still discussing how to proceed.

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