Concept
In-Firm Ethics Counsel
Disclosure for the lawyer's own ethics advice, claims, and defenses
In-Firm Ethics Counsel
A lawyer whose client has just threatened a malpractice claim will often walk down the hall to the colleague who handles the firm's own ethics questions. Model Rule 1.6(b)(4) covers that visit. A lawyer may reveal information relating to the representation to the extent the lawyer reasonably believes necessary to secure legal advice about compliance with the Rules, and the text does not require the adviser to sit outside the lawyer's firm.1 That permission answers only the confidentiality question. A second question arrives if the client later sues: can the client compel the firm to produce what its lawyers said to that colleague? Massachusetts answered it in RFF Family Partnership LP v. Burns & Levinson, and the answer takes the form of a four-part test.2
In that case the client, RFF, sent the law firm Burns & Levinson a notice of claim and a draft complaint while the firm still represented it, and the firm's lawyers consulted the firm's in-house counsel about how to respond.3 RFF demanded those communications. It argued that a firm that keeps representing a client after a threatened malpractice claim owes duties “paramount to its own interests,” so every attorney-client communication, including those made for the firm's own defense, is discoverable under the fiduciary exception.4 The Supreme Judicial Court disagreed. It held that the attorney-client privilege covers confidential communications between a law firm's in-house counsel and the firm's attorneys, even when the communications are meant to defend the firm against a malpractice allegation by a current outside client, and it affirmed the protective order that kept them confidential.5
The court's reasons were practical. Applying the privilege in this setting will often benefit the client and will likely increase law firms' compliance with their ethical obligations.6 The compliance point rests on how lawyers behave once they suspect a mistake. The court quoted the argument that a lawyer who realizes that he or she has erred should seek advice promptly and disclose fully what was done or not done, so the error can be rectified before the client is irreparably damaged. A lawyer who expects those communications to reach the client in a later malpractice case will be much less likely to seek prompt advice from members of the same firm.7
The client gives up little under this rule. It remains entitled to full and fair disclosure of the facts relevant to the representation, including any bad news, and to sound legal advice from its firm. What it cannot demand are the firm's privileged communications with in-house or outside counsel about how those facts were presented and the advice formulated, when the firm conducted those communications for its own defense against the client's adverse claims.8
The court also rejected an argument built on the conflict rules. Rule 1.10(a) generally bars lawyers in the same firm from representing outside clients who are adverse to each other, but nothing in the rule or its commentary suggests that it prohibits in-house counsel from advising the firm about a threatened claim by an outside client, and applying it there makes no sense. Even if the rule did bar in-house counsel from representing the firm against an outside client, the firm could still reveal confidential client information to outside counsel where necessary to its own defense. The imputation of conflicts to in-house counsel therefore adds nothing to the outside client's protection in loyalty or confidentiality.9 The court added that the Restatement lists thirteen sanctions for a firm's breach of Rule 1.7 by an impermissible conflict, and none of them, apart from a final catch-all “other sanction,” requires disclosure of otherwise privileged communications.10
The first condition creates the attorney-client relationship between the adviser and the firm, the second keeps the adviser out of the matter in dispute, and the third keeps the cost of the consultation with the firm. In the Burns & Levinson dispute, each condition was either properly found by the trial judge or undisputed, and that is why the protective order stood.12
All four conditions must be met, so a failure on any one defeats the privilege. A firm that wants the protection can designate an ethics adviser in advance, keep that adviser off the matters it may be asked about, and absorb consultation time as firm overhead. The designation may be informal, but it must exist when the consultation occurs.
The test comes from a single Massachusetts decision, and one secondary source still cautions lawyers to recognize the discoverability risks of dealing with in-firm or outside counsel and to take steps to protect the privilege.13 The protection reaches the firm's communications and leaves the client's entitlement to the facts and to sound advice untouched.14 The court's observation that a firm facing a client's claim may reveal confidential client information to outside counsel where necessary to its own defense points to the claims-and-defenses exception, which the next sections take up.15