In the Boston Bar Journal’s Spring 2013 issue, SRBC partners David Barry and William Boesch look at an issue that is currently the subject of a case before the Massachusetts Supreme Judicial Court: whether a law firm’s internal communications about a malpractice-threatening current client are privileged against discovery.

An excerpt:

In the midst of a law firm’s handling of a case, a client announces that he believes the firm may have mishandled the matter and that he has retained separate counsel to evaluate the firm’s work. The client insists that the firm continue to handle the matter because withdrawing now would be prejudicial. He says that if the case turns out badly, he will seek indemnity from the firm for his losses.

The lawyers involved in the case turn to their colleagues for advice. They talk and exchange e-mails with the firm’s managing partner, and with others in the firm who have experience in the subject-matter of the case and in professional-liability matters. The managing partner requests a detailed memorandum explaining how the case was handled and why the now-disputed decisions were made.

If a malpractice lawsuit follows, are these in-firm communications privileged against discovery? The ongoing fiduciary obligation of a firm to a current client, and the potential for conflict between the firm’s own interests and those of a client who threatens a malpractice claim, have prompted judges in a series of cases to hold that in-firm communications such as those described in the example above are not privileged, even if conducted with the express purpose of seeking and obtaining legal advice about the client’s threatened claim.

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William L. Boesch

Partner

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