Swift, Currie, McGhee & Hiers v. Henry

When opposing counsel filed a motion to recover attorney fees personally from attorney J. Hue Henry (plaintiff), Henry retained the law firm Swift, Currie, McGhee & Hiers (the firm) (defendant) to defend against the motion. Partner James McDonald Jr. handled the matter and spoke with opposing counsel attempting settlement. When McDonald told Henry about those discussions, Henry came to believe personal animus had motivated opposing counsel to file the motion against Henry personally. Henry filed his own motion seeking attorney’s fees from the other side and opposing counsel personally and asked McDonald to prepare a memorandum detailing the discussions between the two attorneys. McDonald prepared the memorandum but refused to give it to Henry. Henry attempted to subpoena the document, but McDonald moved to quash the subpoena duces tecum. Meanwhile, Henry brought a separate lawsuit against the firm for breach of fiduciary duty and asked for an order requiring the firm to produce the memorandum. The second court granted McDonald a protective order, but the first court reached the opposite result by denying McDonald’s motion to quash. Both courts issued certificates allowing immediate review. The appellate court accepted and consolidated the two appeals and concluded that McDonald had to produce the memorandum, reasoning that it did not qualify as attorney work-product. McDonald appealed, and the Georgia Supreme Court accepted review.