St. Mary's Journal on Legal Malpractice & Ethics

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St. Mary's University School of Law


Clement J. Hayes

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When questions are raised regarding a law firm attorney's representation of a firm client, the questioned attorney often wishes to seek legal counsel. A conferral will often benefit the attorney, the firm, and the client. Conferences regarding questioned conduct should be encouraged, not discouraged. To encourage these beneficial conferrals, a broad attorney-client communication privilege and a broad work-product protection (or privilege) should be available. Availability should not be dependent upon whether in-house, outside, or other legal counsel is employed. While earlier federal precedents were split regarding the availability of the attorney-client communication privilege in the in-house counsel setting, increasingly therein the privilege is recognized by state high courts. In addition, work-product protections should often be available to legal counsel advising questioned attorneys. Because of current federal-state and interstate differences in the two immunities from compelled involuntary disclosure, conferring legal counsel and questioned attorneys must proceed cautiously.