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Clients Benefit When Lawyers Consult In-House Ethics Counsel So Says Boston Bar Amicus Brief

Arguing that Massachusetts will benefit from stating  a clear rule applying the attorney-client privilege when a lawyer consults with in-house ethics counsel, the Boston Bar Association (BBA) today filed an amicus brief in RFF Family Partnership v. Burns & Levinson.

"The issue presented by this appeal is important for all of the BBA's members who practice their profession in law firms, large or small, and for their clients," argues the brief. "The BBA therefore supports the adoption by this Court of a clear rule providing that the attorney-client privilege applies when a lawyer consults with in-house ethics counsel."

In the case in question, the Superior Court (Business Session) has already ruled that the attorney-client privilege does exist with respect to a lawyer consulting in-house counsel. That ruling has been challenged by plaintiff RFF Family Partnership. The BBA takes no position on the merits of the claim underlying the appeal.

Were the SJC to state such a clear rule, it would provide a model for state high courts throughout the nation. Providing a bird's eye view into the practice of law firms in the 21st century -- where urgent questions demand quick answers -- the brief makes the case that "clients benefit when their lawyers are encouraged to consult freely with in-house ethics counsel in a privileged communication."

The BBA brief argues that the attorney-client privilege should apply to such consultations on the following conditions:

1. In-house counsel has been formally or informally designated to provide advice to the law firm, along with the counsel’s other work;
2. In-house counsel does not work on the particular client matter that presents an issue; and
3. The time spent by in-house counsel on advising the law firm is absorbed by the law firm and is not billed or charged to any client.

The BBA's amicus brief was drafted by legal ethics expert Robert M. Buchanan, Jr., a partner at Choate Hall & Stewart.

Business Transactions Committees

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    Christopher Somma

    Goodwin Procter LLP

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    OneUnited Bank

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    Scott P. Macbeth

    EMC Corporation

    (508) 249-1492

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    Elizabeth Black

    The TJX Companies Inc.

    (508) 390-1000

    Jill A DiGiovanni

    The Endurance International Group, Inc.

    (781) 852-3200

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    Jonathan Draluck

    Gesmer Updegrove LLP

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    This committee addresses regulatory and related issues affecting the natural gas, electric and telecommunications industries in Massachusetts — on the federal level and in other jurisdictions. Members typically practice before the Massachusetts Department of Public Utilities, Massachusetts Department of Telecommunications and Cable, Massachusetts Department of Environmental Protection, Federal Energy Regulatory Commission, Federal Communications Commission, and state and federal courts.

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    Jamie M. Tosches

    Office of the Massachusetts Attorney General

    (617) 727-2200

    James M. Avery

    Brown Rudnick LLP

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    Bingham McCutchen LLP

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    Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

    (617) 348-3058

  • Securities Law Committee
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    Greenberg Traurig, LLP

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    McCarter & English, LLP

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