Privilege protects in-house law firm communications about malpractice claim from client discovery

When a law firm faces a possible malpractice claim by a current client, confidential communications between the lawyers working for the client and designated in-house ethics counsel about how to handle the potential malpractice matter are privileged, providing certain rules have been followed, a top state court says.

Attorney-client privilege applies to protect the law firm and lawyers involved from disclosing their communications to the client, the Supreme Judicial Court of Massachusetts held Wednesday, “provided that (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel, (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter, (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential.”

Finding that these criteria were met in the case at bar, the court affirmed a lower court ruling that communications the now-former client is seeking to obtain in discovery are privileged. The underlying transaction at issue in the malpractice case involved a real estate deal that had gone bad.

The case is RFF Family Partnership, LP v. Burns & Levinson LLP. The court’s opinion can be accessed by clicking on the slip opinions tab on the home page of the supreme court’s website

Hat tip: Legal Profession Blog

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