In March, Robert M. Buchanan, Jr., a partner at Choate Hall & Stewart
, drafted an amicus
on behalf of the Boston Bar Association in
the case of RFF Family Partnership v. Burns & Levinson
. Earlier this week
the SJC issued its decision
. 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 fourth.
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.