Summary
The Oregon Supreme Court considers whether communications between lawyers at a law firm and the firm’s in-house counsel are protected by Oregon’s attorney-client privilege under OEC 503. The court holds that the privilege applies to such communications when the statutory requirements are satisfied and rejects a judicially created fiduciary exception not included in OEC 503. It therefore orders the trial court to vacate its order compelling production of the privileged materials.
Topics
Practice areas
Questions Presented
- Whether mandamus was an available remedy to review a discovery order compelling disclosure of allegedly privileged communications.
- Whether communications between lawyers in a law firm and the firm's in-house counsel can satisfy the requirements of Oregon Evidence Code 503.
- Whether Oregon Evidence Code 503 permits a judicially created fiduciary exception to the attorney-client privilege beyond the exceptions enumerated in OEC 503(4).
Holdings
- Mandamus is an appropriate remedy when a discovery order erroneously requires disclosure of a privileged communication because ordinary appeal is not a plain, speedy, and adequate remedy after the communication has been disclosed.
- Communications between lawyers in a law firm and the firm's in-house counsel may fall within the attorney-client privilege under OEC 503 when the statutory requirements are satisfied.
- OEC 503(4) is a complete enumeration of the exceptions to the attorney-client privilege; because it does not include a fiduciary exception, Oregon courts may not create one.
Key quotations
“We conclude that OEC 503(4) was intended as a complete enumeration of the exceptions to the attorney-client privilege. Insofar as that list does not include a “fiduciary exception,” that exception does not exist in Oregon, and the trial court erred in relying on that exception to compel production of communications that otherwise fell within the general scope of the privilege.” (501)
“Peremptory writ to issue.” (502)
Factual background
Crimson Trace retained Davis Wright Tremaine lawyers to prosecute patents and represent it in patent-infringement litigation against LaserMax. During that litigation, the firm's lawyers consulted the firm's Quality Assurance Committee, which acted as in-house counsel, concerning potential conflicts, the firm's handling of the litigation and settlement, sanctions, unpaid fees, and the possibility of a malpractice claim by Crimson. After Crimson sued the firm, it sought discovery of those internal communications. The trial court found that most communications were confidential and made for the purpose of obtaining legal services, but compelled production after applying a fiduciary exception.
Procedural history
Crimson Trace sued Davis Wright Tremaine LLP for legal malpractice and breach of contract arising from the firm's representation of Crimson in patent litigation. During discovery, Crimson moved to compel production of internal communications between the firm's lawyers and its Quality Assurance Committee, which served as in-house counsel. The trial court determined that most communications otherwise satisfied the requirements of Oregon's attorney-client privilege but applied a judicially created fiduciary exception and ordered production of all documents. The Oregon Supreme Court issued an alternative writ; the trial court declined to vacate its order, leading to this decision.
Remand instructions
The trial court was ordered to vacate its order compelling production of communications that otherwise fell within the attorney-client privilege. The trial court remained free to order production of the three communications it found were not made for the purpose of facilitating professional legal services to Davis Wright Tremaine.