Business Litigation Lawyer Chicago, IL

The Recent Evolution of Attorney/In-House Counsel Privilege

Even lawyers sometimes find themselves needing good legal advice and in those situations, in-house counsel for a law firm can be a valuable resource to help ensure that attorneys are able to fulfill their ethical responsibilities.

Whether or not communications between an attorney and in-house counsel are privileged, however, is still somewhat unclear.  In recent weeks, two different states’ supreme courts have tackled the issue, with both Massachusetts and Georgia courts agreeing that the communications between attorneys and in-house counsel are privileged, at least in legal malpractice cases, while the Oregon Supreme Court is expected to issue its own opinion on the subject later this fall.

In the Massachusetts case, RFF Family Partnership, LP v. Burns & Levinson LLP, the plaintiffs had demanded document production from Burns and Levinson as part of their legal malpractice action against the firm, who had previously represented them in a land deal that had collapsed. Burns and Levinson then filed for a protective order, explaining that many of the documents requested were actually confidential communications between their attorneys and a partner in the firm who was acting as in-house counsel to the attorneys for the purposes of providing ethical and legal advice.  The Massachusetts Supreme Court agreed with this assessment, noting that as long as the in-house counsel was an attorney who had not worked on the underlying case, and that the time spent communicating was not billed to a client, and that the communications were made in confidence, that the communications between an attorney and in-house counsel could be deemed to be confidential.

Similarly, in Georgia, in St. Simon’s Waterfront LLC v. Hunter, Maclean, Exley & Dunn, the court ruled that as long as the in-house counsel was effectively the attorney’s counsel regarding the underlying matter, that a normal attorney-client privilege would be formed between the attorney and his in-house counsel, even if they were both technically lawyers in the same firm, so long as all of the other requirements for establishing that privilege were met. The court’s opinion did point out, however, that while this ruling did extend a privilege under the rules of evidence, any questions an attorney may have about ethical issues should still be referred to the state bar.

Not everyone is satisfied with this new area of privilege, however, as the Association for Corporate Counsel, a trade association for in-house counsel, has recently filed an amicus brief with the Oregon Supreme Court in an attempt to prevent a third statement from granting privilege to communications made between attorneys and in-house counsel. The ACC argues that by allowing this type of privilege, the court would undermine the relationship between an attorney and his client, because, just as an attorney’s obligations of trust and loyalty prevent him or her from taking on cases that create direct conflicts of interest with an existing conflict, there is something inherently wrong about allowing a law firm to effectively represent itself against a former client, and hide behind an attorney/client privilege in doing so.

At their annual gathering in San Francisco, The American Bar Association unanimously passed a resolution calling on legislatures around the country to pass laws ensuring that this class of communications is privileged.

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