An attorney walks into his partner’s office with a concerned look on his face. He closes the door and begins to discuss an active case. “Here is what happened. What would you do? What if this happens? What if it does not?” If these questions mature into a claim of legal malpractice adverse to a current or former client, who can a lawyer turn to for legal advice? Can he speak with his partners? And if he does, will those communications be protected from disclosure in the subsequent malpractice claim? It depends.
A communication for the purposes of giving or receiving legal advice between a client and his attorney is privileged from disclosure. Minn. Stat. §595.02. There is no question that communications with outside counsel retained for the purposes of assessing a potential malpractice claim or defending against an actual malpractice claim are protected as privileged. But, in today’s world of frequent malpractice claims and significant retentions, it is natural for a law firm to want to keep things in house. If an attorney is the client and he is communicating with other attorneys in his own office, the definition of what is privileged is less clear.
The Supreme Court long ago recognized that “in-house” counsel for corporations can conduct investigations with the protection of the attorney client privilege. See Upjohn Co. v. U.S., 449 U.S. 383 (1981). The same reasoning should apply to law firms, but courts have been reluctant to reach that conclusion. The first court to reject the idea that a law firm may be both lawyer and client found that the resulting internal consultation created a conflict of interest and thus, no privilege could apply. In re Sunrise Securities Litigation, 130 F.R.D. 560 (E.D. Pa. 1989). Other courts agreed. See e.g., Koen Book Distributors, v. Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C., 212 F.R.D. 283 (E.D. Pa. 2002); Asset Funding Group LLC v. Adams & Reese, LLP, 2008 WL 4948835 (E.D. La. 2008); E-Pass Technologies, Inc. v. Moses & Singer, LLP, 2011 WL 3794889 (N.D. Cal. 2011).
Nonetheless, the tide appears to be turning in favor of protecting internal law firm in house communications.