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Privilege Covers Law Firms' Communications with In-House Counsel

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By Aditi Mukherji, JD on July 16, 2013 10:03 AM

Attorney-client privilege covers the confidential communications between a law firm’s lawyers and their in-house counsel, even when the law firm faces a possible malpractice claim by a current client, two courts have recently ruled.

If you’re an attorney in Massachusetts or Georgia, listen up.

Supreme Court of Massachusetts Ruling

Until this ruling, the highest court of Massachusetts noted, no court of last resort in the United States had addressed how the attorney-client privilege applies to a law firm's in-house communications concerning an existing client.

Most courts that have weighed in on the issue have ruled that such communications "aren't protected from disclosure to the outside client," wrote Associate Justice Ralph D. Gants, who authored the opinion.

And yet, he concluded, nothing in the ABA Model Rules of Professional Conduct or Massachusetts' rules barred applying the privilege. On that note, the Supreme Court of Massachusetts held the privilege applies.

Attorney-client privilege applies to protect the law firm and its lawyers involved from disclosing their communications to the client, provided that:

  1. The law firm has designated in-house or ethics counsel within the firm,
  2. The in-house counsel didn't 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.

Supreme Court of Georgia Ruling

In the Georgia case, the state's high court stepped in and came to a similar conclusion.

Writing for the court, Chief Justice Carol Hunstein said that as long as there's an actual attorney-client relationship -- that is, that the firm is clearly established as the client of the in-house counsel -- the privilege may attach to their communications.

Of course, the communications must meet all of the usual requirements for privilege. But Hunstein cautioned that the court was analyzing the privilege question independent of the state's lawyer ethics rules.

If you're a Georgia peach of a lawyer who wants to know whether your conversations about potential malpractice suits by current clients violate ethics rules, you'll need to field those questions to the State Bar of Georgia.

Just make sure you're not getting used for your privilege.

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