The Oregon Supreme Court held last week that the attorney-client privilege applies to communications between a law firm's lawyers and the firm's in-house counsel. In Crimson Trace Corp. v. Davis Wright Tremaine LLP, plaintiff sued its lawyers for malpractice, and sought discovery of communications between the defendant lawyers and a group of firm lawyers designated as in-house counsel. Those internal communications had occurred when a potential conflict of interest arose between the client and its lawyers.
The trial court held that the communications were discoverable and were not subject to the attorney-client privilege, adopting a "fiduciary exception" to Oregon Evidence Code 503, which sets out the scope of the privilege. According to the fiduciary exception, a law firm's fiduciary obligations to its clients prevent it from invoking the privilege to protect its lawyers' communications with in-house counsel. Justice Landau, writing for the Supreme Court, concluded that the fiduciary exception is not supported by the plain language of Rule 503, and that the internal law firm communications in that case were protected by the privilege.