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From Boston Bar Journal: Massachusetts Leads The Nation On The Attorney-Client Privilege For Law Firms

by Robert M. Buchanan, Jr.

Case Focus

The Supreme Judicial Court of Massachusetts has taken intellectual leadership on an issue of nationwide importance for the legal profession.  RFF v. Burns & Levinson465 Mass. 702, 703 (July 2013) addressed “whether confidential communications between law firm attorneys and a law firm’s in-house counsel … are protected from disclosure to the client by the attorney-client privilege.”  The SJC ruled firmly that the privilege does apply  the first time this issue has been resolved by the highest court in any jurisdiction.

Examples Of The Issue In Practice

The Boston Bar Association filed an amicus brief in the RFF case.  We provided several practical examples of how in-house counsel function in law firms.

Example 1:  Law Firm represents Client A and also represents Client B.  Client B calls Lawyer asking for urgent advice about an affiliate of Client A.  Does Lawyer have a conflict of interest?

Example 2:  Lawyer is preparing for a strategy discussion with Client, which is scheduled to begin in a few hours.  Suddenly Lawyer realized that he may have made a technical or strategic mistake.  What should he do?  Does he need to disclose something to Client?

Example 3:  A real estate developer Client sends a letter accusing Law Firm of malpractice, and at the same time insists that Law Firm continue performing work for the developer.  Should Law Firm continue performing work for this Client?

In each of these three scenarios, the lawyer needs guidance; the law firm’s in-house counsel is in the best position to provide guidance; and the client will benefit if the lawyer obtains proper guidance promptly.

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