RFF Family Partnership, LP v. Burns & Levinson, LLP

Summary

The Massachusetts Supreme Judicial Court held that confidential communications between a law firm’s attorneys and designated in-house counsel concerning a malpractice claim by a current client may be protected by the attorney-client privilege. The court established conditions for protection, including designation of in-house counsel, lack of involvement in the underlying client matter, no billing of the time to the client, and confidentiality. The court affirmed a protective order shielding the communications from discovery and rejected the asserted fiduciary and current-client exceptions on the facts presented.

Holdings

1. Confidential communications between a law firm's attorneys and the firm's designated in-house counsel concerning how to respond to a malpractice claim by a current client are protected by the attorney-client privilege, even when the communications are intended in part to defend the law firm against the client's allegations.
2. The privilege applies only if the law firm has designated in-house or ethics counsel to represent the firm; that counsel has not worked on the client matter or a substantially related matter; the consultation time is not billed or charged to the outside client; and the communications are made and kept confidential.
3. The court declined to decide whether Massachusetts should adopt a fiduciary exception to the attorney-client privilege, but held that the exception would not apply to the communications at issue because they were made for the law firm's own defense and were not paid for by RFF.
4. Massachusetts does not adopt a current-client exception that would automatically defeat the attorney-client privilege for communications between a law firm's attorneys and its in-house counsel after a current client threatens malpractice litigation.
5. Protecting the firm's communications with in-house counsel does not relieve the firm of its duty to provide the client with full and fair disclosure of material facts and appropriate legal advice.

Questions Presented

1. Whether confidential communications between a law firm's attorneys and the firm's designated in-house counsel concerning a malpractice claim by a current client are protected from disclosure to that client by the attorney-client privilege.
2. Whether Massachusetts should recognize a fiduciary exception or current-client exception that would defeat the privilege in this setting.
3. What conditions must be satisfied for the attorney-client privilege to protect communications between a law firm's attorneys and its in-house counsel regarding the firm's response to a current client's malpractice claim.

Disposition

affirmed