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A Georgia Supreme Court case between an attorney and his former lawyer over possession of a memo could define the scope of the work-product privilege. The high court, which granted certiorari in the case on Oct. 3, already appears divided over the issues, one of which is whether a document that wasn’t prepared in anticipation of litigation can get work-product privilege. Chief Justice Norman S. Fletcher, Presiding Justice Leah Ward Sears and Justice Carol W. Hunstein dissented in the decision to grant cert. Swift, Currie, McGhee & Hiers v. Henry, No. S02C1248. The underlying dispute between the parties arose two years ago. Swift, Currie, McGhee & Hiers partner James T. McDonald Jr. and his courtroom opponent, Wade K. Copeland of Carlock, Copeland, Semler & Stair, allegedly discussed the merits of a motion for sanctions and attorney fees for frivolous litigation that Copeland had filed on behalf of a client in Gwinnett Superior Court against McDonald’s client, Athens lawyer J. Hue Henry. Henry claimed his lawyer told him Copeland admitted filing the sanctions motion for spite, and promptly filed his own sanctions claim against Copeland. When McDonald refused to produce a memo he’d created about the conversation at issue, which Henry wanted to use to support his case, Henry sued him in Fulton Superior Court. Last year, Judge Alice D. Bonner ruled that McDonald did not have to give Henry the document. But in the underlying Gwinnett case, Judge Michael C. Clark ruled that McDonald should hand over the memo.

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