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Key Facts
- Federal level: Federal Rule of Evidence 502 sets the standard for waiver of attorney-client privilege but does not create new privilege rights.
- Federal level: The U.S. Supreme Court in Upjohn Co. v. United States recognized broad privilege for corporate communications with attorneys, a precedent often cited for law firm in-house counsel.
- State level: The Massachusetts Supreme Judicial Court held that attorney-client privilege applies to law firm in-house counsel if the firm follows a four-part test.
- State level: The Georgia Supreme Court ruled that attorney-client privilege for in-house counsel is not overridden by state ethical conflict rules.
- State level: The Oregon Supreme Court held that privilege under Oregon law protects lawyer-to-in-house-counsel communications and rejected a fiduciary exception.
- National overview: The ABA House of Delegates adopted Resolution 103 in 2013, urging recognition of privilege for these communications, but the resolution is not binding law.
- National overview: The Association of Corporate Counsel opposes the privilege for law firm in-house counsel, arguing it can undermine client loyalty.
- State level: State law on in-firm privilege varies; only a few state high courts have addressed it directly, and many states have not ruled.
Last reviewed: May 2026. Legal rules, forms, deadlines, and procedures can change by jurisdiction, agency, and court system.
- What the attorney client privilege protects
- The special challenge of in firm consultations
- The 2013 ABA Resolution 103
- State supreme courts back the privilege
- An opposing view the Association of Corporate Counsel
- Distinguishing privilege from the duty of confidentiality
- Federal rule on waiver and the Upjohn precedent
- State law variation and the ABA’s persuasive role
- Sources
What the attorney client privilege protects
The attorney-client privilege is a rule of evidence that shields confidential communications between a client and an attorney from disclosure in legal proceedings. It encourages clients to speak candidly and seek full legal advice. The privilege belongs to the client and can be waived only by the client. Federal courts apply the privilege under common law principles, while many states have codified it in statutes or rules of evidence.
The special challenge of in firm consultations
Law firms face a unique situation when lawyers worry about potential malpractice or ethical violations in ongoing client matters. A lawyer may need to seek advice from the firm’s own in-house counsel about how to handle the situation without harming the client. The question is whether those conversations are protected by the attorney-client privilege, or whether the client can later demand to see what was discussed.
The 2013 ABA Resolution 103
In August 2013, the American Bar Association’s policy-making House of Delegates adopted Resolution 103, which urges courts and legislatures to recognize the attorney-client privilege for communications between law firm personnel and their designated in-house counsel. The resolution declares that the privilege applies even if the discussion creates a conflict of interest between the firm and the client whose matter is at issue. It also states that the ‘fiduciary exception’—a legal doctrine that sometimes limits privilege when the client is a beneficiary of the attorney’s duties—does not apply when lawyers seek legal advice about their own responsibilities to a client. The measure was sponsored by several ABA sections and bar associations and passed with near-unanimous support.
State supreme courts back the privilege
Shortly before and after the ABA resolution, three state supreme courts ruled in favor of protecting in-firm consultations. In Massachusetts, the Supreme Judicial Court in RFF Family Partnership, LP v. Burns & Levinson, LLP (July 10, 2013) established a four-part test: the firm must have designated in-house counsel, that lawyer must not have worked on the outside client’s matter, the firm cannot bill the client for time spent on the consultation, and the communications must be kept confidential. Georgia’s Supreme Court held in St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P.C. (July 11, 2013) that the privilege applies regardless of state ethical rules on conflicts of interest. The Oregon Supreme Court joined them in Crimson Trace Corp. v. Davis Wright Tremaine LLP (May 30, 2014), ruling that attorney-client privilege under Oregon Evidence Code 503 protects communications between firm lawyers and in-house counsel. All three courts declined to apply a fiduciary exception.
An opposing view the Association of Corporate Counsel
Not everyone agrees with broad privilege for law firm in-house counsel. The Association of Corporate Counsel has gone on record opposing it, arguing that the privilege should not be used to hide information from the very client the firm is supposed to serve. In its amicus brief in the Crimson Trace case, the ACC contended that the privilege must give way to the fiduciary duty of loyalty a law firm owes its client. The ABA resolution acknowledges this opposition while maintaining its own position.
Distinguishing privilege from the duty of confidentiality
The attorney-client privilege is often confused with the ethical duty of confidentiality under rules of professional conduct. ABA Model Rule 1.6 generally prohibits a lawyer from revealing information relating to the representation of a client without informed consent. The privilege, on the other hand, is a rule of evidence that applies only in judicial and similar proceedings. Both serve the goal of encouraging candor, but they are separate concepts. Some state ethics opinions, such as ABA Formal Ethics Opinion 08-453, address professional conduct issues related to in-firm consultations without directly defining the privilege.
Federal rule on waiver and the Upjohn precedent
At the federal level, Rule 502 of the Federal Rules of Evidence provides a uniform standard for when the attorney-client privilege is waived through disclosure. Importantly, the rule does not create new privilege rights; it only sets limits on waiver. A foundational U.S. Supreme Court case, Upjohn Co. v. United States (1981), held that corporate employees’ communications with company lawyers are protected by the privilege when made for the purpose of securing legal advice, rejecting a narrow ‘control group’ test. Although Upjohn involved a corporation, its reasoning has been extended by state courts to support privilege for law firm in-house counsel.
State law variation and the ABA’s persuasive role
ABA Resolution 103 is not binding law. It is a policy statement intended to influence courts and lawmakers. As of May 2026, only a few state high courts—Massachusetts, Georgia, and Oregon—have directly ruled on the issue. Other states may follow their lead, adopt the ABA’s reasoning, or take a different path. For general background on attorney-client privilege, see attorney-client privilege basics. For a discussion of federal waiver policies, see government waiver policies.
The 2013 ABA resolution marked a significant moment in the ongoing conversation about legal ethics and evidentiary privilege. While the debate continues, the resolution and the early state court rulings provide a framework for understanding how the law treats these sensitive internal discussions. State courts remain the final authority on this issue for individual jurisdictions.
Sources
- ABA Journal report on Resolution 103 adoption
- BNA/ABA report with full Resolution 103 text
- ABA Section of Litigation article on Massachusetts and Georgia decisions
- Presnell on Privileges analysis of Georgia Supreme Court ruling
- Willamette Law summary of Oregon Supreme Court decision
- Federal Rule of Evidence 502
- Supreme Court’s Upjohn decision
