Cert Petitions: May 6, 2019

The Court granted cert in just one case today, Hill, Kertscher, & Wharton LLP v. Moody, et al. (Case No. S18C1436). The case deals with waiver to the attorney client privilege in legal malpractice cases.

The plaintiffs sued the firm (HKW), complaining legal advice from the firm to oust the president of a California based aerospace company caused them to sue in Georgia and be sued in California, where HKW failed to raise important defenses to the action or disclose its prior representation of (and therefore conflict of interest concerning) the former company president. The conflict of interest lead to HKW's disqualification from the Georgia action and withdrawal from the California action. In the subsequent negligence action, HKW requested the client files of Holland & Knight LLP, the plaintiff's replacement counsel following HKW's disqualification. 

The trial court denied Holland and Knight's request for a protective order, reasoning that the privilege was waived by the decision to sue HKW since both firms had represented the plaintiff's in the litigation

In Moody v. Hill, Kertscher & Wharton LLP v. Moody, et al., 346 Ga. App. 129 (2018), the Court of Appeals reversed. The court reasoned that while the privileged was certainly waived as between the plaintiffs and HKW, the decision to sue HKW did not waive the privilege as between plaintiffs and Holland & Knight. Unlike the cases relied on by the trial court, Holland & Knight's representation occurred after HKW's, and so the general rule that “an attorney is released from the obligations of secrecy when a client charges negligence, malpractice, or other professional misconduct" did not apply. Id. at 130 (citations omitted); compare  Christenbury v. Locke Lord Bissell & Liddell, LLP, 285 F.R.D. 675, 683 (N.D. Ga. 2012).

The Court asked the parties to address "[whether] the Court of Appeals err[ed] in reversing the trial court’s ruling that the plaintiff waived attorney-client privilege with respect to a non-party law firm that also represented the plaintiff in relation to the underlying matter?"

The case is set for the September 2019 Oral Argument Calendar. Justice Peterson will not participate and Justice Ellington is disqualified.



Denied petitions
S19C0127. BRYANT V. HUDSON (A18I0240)
S19C0170. SNIPES V. THE STATE (A18A0941)
S19C0179. NORTON V. NORTON (A19D0058)
S19C0215. WILLIAMS ET AL. V. THE STATE (A18A0963)
S19C0229. PARSON V. DEKALB MEDICAL CENTER, INC. (A18A0932)
S19C0239. NICKSON V. EXPRESS SERVICES, INC. ET AL. (A19D0067)
S19C0244. WARE V. PINE STATE MORTGAGE CORP. ET AL. (A18A2156)
S19C0254. BROOKER V. SHIPMAN FAMILY INVESTMENTS (A19A0101)
S19C0255. SHIELDS V. THE STATE (A18A0940)
S19C0261. WALKER V. THE CITY OF AMERICUS ET AL. (A18A0173)
S19C0262. WRIGHT V. THE CITY OF AMERICUS ET AL. (A18A0121)
S19C0264. CARSWELL V. THE STATE (A18A0876)
S19C0265. MATSKO V. THE STATE (A18A0849)
S19C0306. DAVIS ET AL. V. NORTHSIDE HOSPITAL CHEROKEE (A18A1233)
S19C0318. BUSSEY V. THE STATE (A19A0317)
S19C0349. ROONEY V. THE STATE (A19A0285)
S19C0353. HAGGARD V. INGRAM ET AL. (A18A1229)