MOODY et al.
HILL, KERTSCHER & WHARTON, LLP et al.
MILLER, P. J., ELLINGTON, P. J., and ANDREWS, J
an interlocutory appeal from the denial of a motion for
protective order filed by the plaintiffs in a legal
malpractice action. We reverse.
appellants (Daryl Moody and three business entities
associated with him: Mast Nine, Inc., UAS Investments, LLC,
and Leucadia Investment Holdings, Inc.) commenced this action
against the appellees (Hill, Kertscher & Wharton, LLP,
Douglas Kertscher, and Robert Joseph), complaining that they
were sued as a result of legal advice and services provided
by the appellees. According to the complaint, in January and
February 2015, Moody and UAS Investments retained the
appellees to provide legal advice and services regarding
their ongoing investments and transactions with a
California-based aerospace company. Pursuant to the
appellees' advice, the appellants took measures to oust
the aerospace company's president, Robert Miller, and
filed suit in Georgia against him and the company.
Consequently, the appellants found themselves the defendants
in an action in California brought by the ousted president.
advice and consequent lawsuit in California constitute the
primary basis for the appellants' malpractice action
against the appellees. But the appellants also complained the
appellees failed to raise certain defenses in the California
action, and failed to disclose their prior representation of
Miller and the aerospace company, a conflict of interest that
ultimately resulted in the appellees' disqualification in
the Georgia action, and their withdrawal as counsel in the
April 2015, Moody engaged the law firm of Holland &
Knight to assist with the above litigation. In a retainer
letter dated May 26, 2015, Holland & Knight specified
that its role was to advise Moody in his individual capacity
on the strategic direction of the litigation. Holland &
Knights' limited representation of Moody ended in
appellants eventually filed this action against the appellees
on April 28, 2017, but they did not file suit against Holland
& Knight. The appellees, however, requested production of
Holland & Knight's litigation files for both the
Georgia and California actions, as well as all
correspondence, reports, memos, notes, and research
concerning the appellants. The appellants sought a protective
order on the grounds the requested materials were protected
by both the attorney/client privilege and the work product
trial court found it undisputed that Holland & Knight and
the appellees together had represented the appellants in the
litigation. For that reason, and relying upon
Christenbury v. Locke Lord Bissell & Liddell,
LLP, 285 FRD 675, 683 (N.D.Ga. 2012), the trial court
determined that by suing the appellees, the appellants had
waived any attorney/client privilege and work product
privilege with regard to not only the appellees, but also
non-party Holland & Knight, and denied the motion for
protective order. This appeal followed.
between attorney and client are excluded from evidence in
this state on grounds of public policy. The privilege belongs
to the client and may be waived." Waldrip v.
Head, 272 Ga. 572, 577 (532 S.E.2d 380) (2000).
"[A]n attorney is released from the obligations of
secrecy when a client charges negligence, malpractice, or
other professional misconduct in an action against the
attorney. . . ." Id.
the appellants waived the attorney/client privilege between
themselves and the appellees. The issue presented here though
is whether a client, who sues an attorney for malpractice and
thereby waives the attorney/client privilege, also impliedly
waives the attorney/client privilege with regard to a third
party attorney also engaged by the client but not sued by the
client. It appears this specific issue has not yet been
decided in Georgia. But the Supreme Court has indicated
implied waivers of the attorney/client privilege should be
narrowly drawn, limited to the specific claims of attorney
malfeasance. Waldrip v. Head, id. at 578-79.
Christenbury, supra, the trial court held that the
plaintiff client waived the attorney/client privilege with
regard to a third party attorney for any communications and
materials generated by the non-party third party attorney
during the subject transaction. However, that implied waiver
did not apply to post-transaction communications and
materials. Christenbury is inapposite here, as the
plaintiff client therein actually also sued the third party
attorney (albeit in a different court) for the same
transaction for which the defendant attorney was blamed.
Thus, there was a direct basis for finding a waiver of the
attorney/client privilege with regard to the third party
attorney who was not a party in Christenbury.
instant case, we find no basis for finding the appellants
impliedly waived the attorney client privilege with regard to
the non-party Holland & Knight. The trial court found it
undisputed that Holland & Knight and the appellees
together represented the appellants in connection with the
matters which are the subject of the appellants' claims.
However, the appellants actually engaged Holland & Knight
after the legal advice and services provided by the
appellees that constitute the subject of the appellants'
complaint against the appellees. Holland & Knight were
involved in dealing with the consequences of the alleged
malfeasance of the appellees. Accordingly, even if the rule
in Christenbury were applied, there would be no
basis for finding an implied waiver of the attorney/client
privilege between the appellants and the non-party Holland
Miller, P J and ...