How Privileged Is Communication With Your Firm’s In-House Counsel?


Consider the following hypothetical: Your firm represents a client who two years ago entered into a series of licensing agreements that settled an ongoing dispute between the parties. Each agreement contained an arbitration provision that limited the parties’ rights to assert claims arising under those licensing agreements. Under some arbitration provisions, the time limit was two years from accrual of the claim; for others, it was three. When calendaring reminders regarding the various claims deadlines, you inadvertently mix up some dates, resulting in you missing a deadline to file an arbitration demand for a claim you knew your client had. You immediately seek the advice of your firm’s in-house lawyer or ethics officer regarding your ethical obligations and the client’s possible malpractice claim.

Like any other confidential communication seeking legal advice from counsel, your communications with the firm’s in-house lawyer are privileged, right? Turns out, the answer is what we tell clients all the time: It depends.

Published in NWLawyer, February 2014.

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