This article examines recent cases that have significantly expanded the ability of law firms to claim attorney-client privilege for communications with their designated in-firm general counsel. These cases have relevance even to lawyers practicing in firms too small to warrant the appointment of an in-firm general counsel. This is because many of the earlier cases denied the privilege for communications within law firms based on adoption of a “current client” or “fiduciary” exception, and, based on the same theory, some of those earlier cases cast doubt on the availability of the privilege even with respect to communications with outside counsel. The two recent cases dealing with the in-firm privilege are RFF Family Partnership v. Burns & Levinson, 465 Mass. 702 (July 10, 2013), and St. Simons Waterfront v. Hunter, Maclean, Exley & Dunn, — S.E.2d —, 2013 WL 3475328 (Ga. July 11, 2013).
RFF Family Partnership Case
The facts underlying the RFF Family Partnership case were that in April 2007 plaintiff client hired defendant law firm in connection with a commercial foreclosure matter. Nearly a year into the foreclosure, the client sent notice of claim to the law firm alleging legal malpractice. The participating attorneys consulted the law firm’s in-house counsel, a partner designated to respond to ethical questions and risk management issues. Following the consultation, the firm sought to withdraw from the representation. Meanwhile, the client requested that the firm continue with the post-foreclosure sale of the property, and it did so.
