In March, Robert M. Buchanan, Jr.,
a partner at Choate Hall & Stewart,
drafted an amicus
brief on behalf of the Boston Bar Association in the case of RFF Family
Partnership v. Burns & Levinson . Earlier this week the SJC issued its
The result is good news:
- The SJC firmly supports honoring the attorney-client privilege where
in-house counsel provides advice in a law firm.
- Massachusetts is the first jurisdiction in the nation where the highest
court has endorsed this important principle. Thus the ruling is of national
significance for our profession.
- The SJC adopted nearly verbatim the test proposed in the BBA’s amicus
brief. The BBA had proposed three points, and the SJC added a
The decision states as follows:
The issue presented on appeal is whether confidential communications between
law firm attorneys and a law firm’s in-house counsel concerning a malpractice
claim asserted by a current client of the firm are protected from disclosure to
the client by the attorney-client privilege. We conclude that they are,
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.