BBA Applauds SJC Decision in RFF Family Partnership

In March, Robert M. Buchanan, Jr., a partner at Choate Hall & Stewart, drafted an amicus brief on behalf of the Boston Bar Association in the case of RFF Family Partnership v. Burns & Levinson . Earlier this week the SJC issued its decision. The result is good news:
  • The SJC firmly supports honoring the attorney-client privilege where in-house counsel provides advice in a law firm.
  • Massachusetts is the first jurisdiction in the nation where the highest court has endorsed this important principle. Thus the ruling is of national significance for our profession.
  • The SJC adopted nearly verbatim the test proposed in the BBA’s amicus brief. The BBA had proposed three points, and the SJC added a fourth.

The decision states as follows:

The issue presented on appeal is whether confidential communications between law firm attorneys and a law firm’s in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege. We conclude that they are, provided that (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel, (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter, (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential.