Nearly five years ago, the ABA House of Delegates passed a resolution voicing the organization’s support for the law firm in-house counsel privilege. It urged courts and legislatures to recognize that attorneys’ communications with their own firm’s in-house counsel are privileged, even when those communications relate to ongoing client matters. See 2013 ABA House of Delegates Resolution 103. That resolution came on the heels of decisions from the highest courts of Massachusetts and Georgia, which both held that attorneys can share an attorney-client privilege with their firm’s in-house counsel.

Although the majority of courts who have reviewed this issue have recognized and enforced a privilege shared between law firm attorneys and their in-house counsel, there is some uncertainty nationwide, particularly where the local courts have not addressed the issue directly. Some courts have recognized the tension that can exist between a law firm’s obligations to a client and the law firm’s interest in protecting its internal communications that could arise out of a concern or mistake in the representation of that client.

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