Communications with In-House Counsel Receive Protection from Massachusetts High Court

The Massachusetts Supreme Judicial Court recently issued a much-anticipated decision concerning communications within a law firm, holding that communications between law firm attorneys and the 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.  RFF FAMILY PARTNERSHIP, LP vs. BURNS & LEVINSON, LLP, & others, SJC-11371, July 10, 2013.

The Court concluded that such communications are confidential 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 the communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential.  Because those criteria were met in the case, the Court affirmed a judge's order allowing the defendant law firm and its attorneys to invoke the attorney-client privilege to preserve the confidentiality of the communications.

The decision is a departure from the general rule that communications regarding current clients are not protected.  Accordingly, Massachusetts attorneys working in law firms who wish to keep communications with in-house counsel confidential from an existing client should meet the four conditions identified above.  Neither the New Hampshire nor Maine Supreme Courts, nor the disciplinary authorities of either state have yet adopted a similar position.

For more information on professional liability matters, contact Attorney William Saturley at 603.410.1500 or a member of Preti's Professional Liability Group.