The Georgia Court of Appeals has affirmed that attorney-client privilege can extend to communications between a corporation and its unlicensed in-house counsel, provided certain conditions are met. This decision arose from a contract dispute involving Church’s Chicken and its chief legal officer, where the court upheld the trial court’s determination that the communications were protected by privilege.
In Georgia, the attorney-client privilege safeguards confidential communications between attorneys and their clients, facilitating open dialogue for legal advice. This protection applies to both external and in-house counsel. However, for in-house counsel, the privilege is contingent upon the communication being confidential and intended for legal advice. Not all communications by in-house lawyers are automatically privileged; they must meet specific criteria to qualify.
Georgia Rule of Professional Conduct 5.5(d) permits in-house lawyers not admitted in Georgia to provide legal services to their employer under certain conditions. The lawyer must be authorized to practice in another U.S. jurisdiction, not be disbarred or suspended, and the services must be for the employer or its affiliates. Additionally, the services should not require pro hac vice admission in a particular forum. This rule allows unlicensed in-house counsel to operate within Georgia, provided they maintain an active license elsewhere and adhere to these stipulations.
To ensure that communications with in-house counsel are protected under attorney-client privilege, corporations should:
- Ensure that the in-house counsel is authorized to practice law in at least one U.S. jurisdiction and is not disbarred or suspended.
- Maintain the confidentiality of communications intended for legal advice.
- Limit the dissemination of privileged communications to individuals within the corporation who need to know the information.
By adhering to these guidelines, corporations can better protect their communications with in-house counsel under the attorney-client privilege, even when the counsel is not licensed in Georgia.