Two state high courts ruled this week that the attorney-client privilege means that lawyers need not open confidential talks with their in-house counsel to clients bringing malpractice claims, as a third highest court prepared to mull the same question.
The Massachusetts Supreme Judicial Court ruled on Wednesday in RFF Family Partnership LP v. Burns & Levinson. The next day, the Supreme Court of Georgia issued a similar ruling in St. Simon’s Waterfront LLC v. Hunter, Maclean, Exley & Dunn. Meanwhile, a case raising the same question against Davis Wright Tremaine was at the briefing stage before the Oregon Supreme Court.
In the Massachusetts case, the high court said the privilege applies when a law firm has designated in-house or ethics counsel within the firm. That counsel must have done no work for the client on matter at hand or any related matter, and no outside client may be billed for the consultations.
Finally, the firm must protect the confidentiality of its communications.
In the Georgia case, that state’s high court said that “so long as an actual attorney-client relationship has been formed, with the firm clearly established as the client of the in-house counsel, the privilege may attach to their communications so long as the of the requisites of the privilege are met.”
The Georgia opinion by Chief Justice Carol Hunstein cautioned that the court was analyzing the privilege question independent of the state’s lawyer ethics rules. Lawyers who want to know whether their conversations about potential malpractice suits by current clients violate ethics rules will need to address those questions with the State Bar of Georgia, she wrote.
In the Massachusetts case, RFF, a Santa Monica, Calif.-based commercial lender, hired Burns & Levinson to handle a $1.4 million loan. It later hired Boston’s Prince Lobel Tye for a 2010 Massachusetts Land Court case about the loan. In 2011, Prince Lobel sent Burns & Levinson a notice of claim demanding indemnification for damages due to “ legal malpractice and breach of contract."
RFF’s Burns & Levinson lawyers turned for advice to a partner who fields ethical questions and manages risk for the partnership. The firm did not bill RFF, but threatened to drop the client until the company assured Burns & Levinson that it did not plan to sue.
But after the work ended, RFF did sue Burns & Levinson and two of its attorneys in Massachusetts Superior Court alleging legal malpractice and misrepresentation. In November 2012,Massachusetts Superior Court Associate Justice Thomas Billings granted the firm’s motion for a protective order, and RFF sought an interlocutory appeal.
Associate Justice Ralph D. Gants wrote the Wednesday’sopinion, joined by Chief Justice Roderick Ireland and associate justices Margot Botsford, Fernande Duffly, Barbara Lenk and Francis Spina.
The court noted that until the RFF ruling, no court of last resort in the United States had addressed how the attorney-client privilege applies to a law firm's in-house communications concerning an existing client.
According to Gants, most of the courts that have tackled the issue have ruled that such communications “are not protected from disclosure to the outside client.” Still, he continued, nothing in the ABA Model Rules of Professional Conduct or Massachusetts’rules barred applying the privilege.
“[B]ecause applying the privilege in such contexts will often benefit the client and will likely result in increased law firm compliance with ethical obligations, we hold that the attorney-client privilege applies to confidential communications between a law firm's in-house counsel and the law firm's attorneys, even where the communications are intended to defend the law firm from allegations of malpractice made by a current outside client,” Gants wrote.
Thomas Peisch, a partner at Boston’s Conn Kavanaugh Rosenthal Peisch & Ford who argued for Burns & Levinson, said he and his client were “delighted that the Supreme Judicial Court agreed with us that the discussions within the firm of these meritless claims were privileged.”
RFF understands “the policy considerations,”Prince Lobel partner Richard Briansky and associate Amy Hackett said in a written statement.
“Nevertheless, we believe the Court failed to properly reconcile the interest in preserving the attorney-client privilege with the fiduciary and ethical obligations an attorney owes his client.At a minimum, the Court could have conditioned recognition of the privilege on some form of disclosure to the client before an attorney engages in these types of communications,” they said.
Sheri Qualters can be contacted at firstname.lastname@example.org.