Summary:
Walter sought discovery relating to communications between Waffle House and Jonathan Waller, who had served as general counsel to Waffle House since 2001. Waffle House, asserting attorney-client privilege, directed Waller not to respond. The difficulty, however, was that Waller provided legal services for Waffle House in Georgia, but only held an inactive law license in Illinois and no where else. Despite this, Waffle House reasonably believed that Waller was a licensed attorney and that its communications were privileged.
The bankruptcy court held that the attorney-client privilege belongs to the client and must meet the following conditions:
(1) the attorney-client relation must have existed at the time of the communication;
(2) the communication must have been in confidence;
(3) the communication must relate to a matter concerning which the attorney is employed or is being professionally consulted;
(4) the communication must have been made in the course of seeking or giving legal advice for a proper purpose; and
(5) the privilege must be asserted by the client.
Only the first condition was at issue. The bankruptcy court held that “when the ‘client’ reasonably believes that he is dealing with an attorney, the [attorney-client] privilege should be accorded” even if the client is mistaken.” 1-5 Brandis and Broun on North Carolina Evidence § 129 (citing Uniform Rule of Evidence 502(a)(3); State v. Wiley, 565 S.E.2d 22 (N.C. 2002); and State v. Fuller, 603 S.E.2d 569 (N.C. App. 2004)). Accordingly, communications between Waffle House and Waller prior to discovery that he was not licensed in any state, were privileged.
Commentary:
Unmentioned is that Rule of Professional Conduct 8.3(a) likely requires that this matter be reported to the North Carolina and Georgia State Bar.
For a copy of the opinion, please see:
Walter v. Freeway Foods- Application of Attorney-Client Privilege if Attorney is Unlicensed
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