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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

  • Business Transactions Public Policy Committee
    This is a joint committee between the Business Transactions and Financial Services Sections. The BBA is very active on the legislative front. Often times, business attorneys are asked to lend their expertise.
  • Business Transactions Public Service Committee
    This is a joint committee of the Business Transactions and Financial Services Section. This committee helps with the Business Law Pro Bono Project which is run by Lawyers Clearinghouse. This committee also works to find new transactional pro bono opportunities for business attorneys.
  • Commercial Finance Committee
    This committee focuses on lending capital in commercial transactions.

    Contact Information

    William Scott McMahon

    Downes McMahon LLP

    (617) 600-8694

    John F. Ventola

    Choate Hall & Stewart LLP

    (617) 248-5085

  • Communications Committee
    This is a joint committee between the Business Transactions and Financial Services Sections. This committee publishes information relevant to the business bar. If you are interested in an editorial position or writing an article, please contact the Co-Chairs.

    Contact Information

    Vanessa English Candela

    EMC Corporation

    (508) 293-6456

    Gina M. Perini

    (508) 315-8046

  • Corporate Counsel Committee
    This committee focuses on programs and activities of interest to in-house counsel.

    Contact Information

    Henry L. Grossman

    Kalido, Inc.

    (617) 237-0087

    Kari A. Jorgenson

    Zipcar

    (617) 336-4364

  • Corporate Law Committee
    This committee focuses on the development of laws and policies affecting corporations — both profit and nonprofit — and business trusts.

    Contact Information

    Jonathan Draluck

    Gesmer Updegrove LLP

    (617) 350-6800

    Christian A. Atwood

    Choate Hall & Stewart LLP

    (617) 248-4072

  • Energy and Telecommunications Law Committee
    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.

    Contact Information

    James M. Avery

    Brown Rudnick LLP

    Rebecca Tepper

    Massachusetts Department of Public Utilities

    (617) 305-3500

  • Mergers and Acquisitions Committee
    This committee addresses issues unique to business combination transactions, including mergers, share exchanges, tender offers and asset purchases. Lawyers representing buyers, sellers and advisers in planning, negotiating and executing international and domestic public and private transactions are involved.

    Contact Information

    Daniel M. Niedzwiecki

    Lantheus Medical Imaging

    (978) 671-8648

    Michael A. Conza

    Bingham McCutchen LLP

    (617) 248-7000

  • Securities Law Committee
    This committee provides members with opportunities to learn about and discuss issues in securities law, such as compliance and regulatory issues.

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    Carl Franklin Barnes

    Morse, Barnes-Brown & Pendleton, PC

    (781) 622-5930

    Benjamin Michael Hron

    McCarter & English, LLP

    (617) 449-6584

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