[Note: sweeping changes to Georgia's evidence law go into effect in January 2013]
O.C.G.A. § 24-9-21(2)
There are certain admissions and communications excluded on grounds of public policy. Among these are . . . (2) communications between attorney and client. …
O.C.G.A. § 24-9-27(c)
No party or witness shall be required to make discovery of the advice of his professional advisors or his consultation with them.
O.C.G.A. § 24-9-24
Communications to any attorney or to his employee to be transmitted to the attorney pending his employment or in anticipation thereof shall never be heard by the court. The attorney shall not disclose the advice or counsel he may give to his client, nor produce or deliver up title deeds or other papers, except evidences of debt left in his possession by his client. This Code Section shall not exclude the attorney as a witness to any facts which may transpire in connection with his employment.
O.C.G.A. § 24-9-25
No attorney shall be competent or compellable to testify for or against his client to any matter or thing, the knowledge of which he may have acquired from his client by virtue of his employment as attorney or by reason of the anticipated employment of him as attorney. However, an attorney shall be both competent and compellable to testify for or against his client as to any matter or thing, the knowledge of which he may have acquired in any other manner.
Paul S. Milich,”Attorney Client Privilege,”
Courtroom Handbook on Georgia Evidence 26-32 (2010)
• There are five basic parts to the attorney-client privilege: (1) a person seeking legal advice from the attorney, (2) made communications to the attorney for that purpose, (3), in confidence, (4) now asserts the privilege, (5) which has not been waived.
• The privilege only protects communications, not facts.
• The attorney-client privilege protects not only the client's communications to the attorney but also the advice the attorney gives the client.
• The privileged relationship is formed the moment the client seeks legal advice from the attorney, regardless of whether the attorney ultimately is hired by the client.
• The privilege continues even after the client's death
• Although attorneys are sometimes consulted on nonlegal matters, only communications by a client seeking legal advice fall under the privilege.
• The attorney-client privilege includes communications made by the client to the employees and agents of the attorney to the extent that those employees or agents are acting in the course of their duties to assist the attorney in providing legal representation to the client
• The attorney-client privilege is designed only to protect communications that the client wants to keep confidential. Confidentiality, and the privilege, is destroyed when the client reveals the communication to someone outside the privileged relationship.
• Both the client and the attorney have a duty to safeguard their communications from being overheard or intercepted and insufficient concern with confidentiality can destroy the privilege.
• When an attorney represents two or more clients in the same matter, communications from any client to the attorney are deemed confidential vis-a-vis third parties, but not among the clients themselves. Thus, for example, if a partnership is sued by a third party, the partners’ communications with their attorney would be privileged. If the partners sued one another, however, their communications with the partnership's attorney would not be privileged.
• Facts about the client that are readily observable or known cannot become "confidential" simply because the client tells the attorney about them. Thus an attorney may be asked for her opinion of a client's general mental state insofar as the client's mental condition would be evident to anyone who spent any time with the client.
• The privilege generally does not cover a client’s identity and thus an attorney may be required to disclose it unless there are compelling reasons for extending the privilege. The most compelling reason, of course, is that disclosure of the client's identity would reveal the substance of a confidential communication. For example, if a client gives the attorney physical evidence related to a crime, the attorney's duty is to turn the evidence over to the police. Yet the act of turning the evidence over to the police, together with disclosure of the client's identity, would obviously reveal confidential attorney-client communications and thus the privilege is extended to allow the attorney to refuse to disclose the client's identity in such a circumstance.Attorney-client correspondence is privileged in both directions, as long as confidentiality is maintained. As to all other client documents, if they are discoverable in the hands of the client, they are discoverable from the attorney. A client cannot confer a privilege on documents simply by shipping them to the attorney for review.
• The privilege belongs to the client, not the attorney, and if the client asserts the privilege the attorney cannot waive it; if the client waives the privilege, the attorney cannot assert it.
• If a client is using legal advice and services to further a criminal or fraudulent enterprise, the “privilege takes flight,” regardless of whether the attorney is aware or ignorant of a client’s intentions or misuse of the attorney’s services. [The “crime/fraud” exception]
• A party attempting to defeat a privilege under the crime, fraud exception must first show, without access to any privileged materials, “a factual basis adequate to support a good faith belief by a reasonable person” that the client was using the attorney to assist some crime or fraud. U.S. v. Zolin, 491 U.S. 554, (1989).