Lawyers: You Need a General/Ethics Counsel!!!

Courts begin to recognize that a lawyer need not hire outside counsel for advice.

Almost every lawyer will encounter at least one unhappy client who may sue for malpractice, whether the “claim” is legitimate or not.

With whom may the lawyer confer about the beef (before suit and representation by insurance counsel)?

Several resources are available, including state bar ethics hotlines and other lawyers.

Until recently, if a lawyer who received a client complaint was in a firm, it was an open question if communications with another lawyer in the firm were protected Attorney/Client communications.

Thankfully, the courts have started to publish written opinions that affirm the right of a firm to have an in-house general counsel, sometimes called an ethics counsel.  When a whiff of a dissatisfaction claim arises, the “offending” lawyer should immediately alert the firm’s general counsel, who would provide advice about ethical duties to the client and advice to the lawyer about how to proceed in other regards, as well.

One illustrative case from California is Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal. App. 4th 1214.  Palmer (as it’s called) sets forth conditions for preserving from discovery by the client intra-firm communications between the “offending” lawyer and the firm’s general counsel as being attorney-client confidential communications.  Just as communications with an outside lawyer hired by the firm would be privileged, so would in-house communications with a lawyer whose job it is to advise the firm in such matters and who had had no involvement with the client.

However, the Palmer court did point out that certain conditions must be met to claim the privilege successfully.  One has to avoid the “prairie fire” communications within a firm among those who have no business communicating about the client, the file and the claim (other than necessary reports from the in-house general counsel re: status).  In other words, the general counsel needs to behave as an outside lawyer would who had been hired by the firm to represent it.

Other states whose courts have recognized the right to have an in-house general counsel include Georgia and Massachusetts.  Check with your state bar association for pertinent information.