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- The ABANOW page functions as a reference copy of ABA Resolution 103
- ABA Resolution 103 focuses on privilege when lawyers consult their own firm’s in house counsel
- The resolution describes several related privilege principles in plain English
- Attorney client privilege is often described as an evidence rule that protects certain communications
- Privilege disputes often turn on confidentiality and waiver
- Courts often address privilege disagreements through discovery motions
- The ABA resolution is policy oriented rather than a binding rule by itself
- Sources
Key Facts
- Federal and state: Attorney-client privilege is an evidence rule that can protect confidential communications made for legal advice.
- Federal and state: A 2013 Bloomberg BNA report describes the ABA House of Delegates adopting Resolution 103 at the ABA Annual Meeting in San Francisco.
- Federal and state: Resolution 103 urges governmental bodies to recognize privilege protection for confidential communications between law firm personnel and designated in-house counsel.
- Federal and state: Resolution 103 states that a conflict of interest arising from a firm’s consultation with in-house counsel about a current client does not create an exception to the privilege.
- Federal and state: Resolution 103 states that a fiduciary exception to privilege, if a jurisdiction recognizes it, does not apply to a law firm’s confidential communications seeking advice about the firm’s own duties and potential liabilities to a current client.
- Federal and state: Courts commonly analyze privilege disputes by focusing on elements such as a client relationship, legal-advice purpose, confidentiality, and waiver.
- Federal and state: Privilege disputes often arise in discovery when one side seeks documents and the other side asserts privilege in response to production requests.
- Federal and state: The BNA report identifies an ABANOW web page as a source for the full text of Resolution 103 and its accompanying report.
The ABANOW page functions as a reference copy of ABA Resolution 103
The URL ABANOW’s page for ABA Resolution 103 is best understood as a reference page because it is cited as hosting the full text of a specific ABA House of Delegates resolution and its supporting report.
ABA Resolution 103 focuses on privilege when lawyers consult their own firm’s in house counsel
According to a Bloomberg BNA conference report, the ABA House of Delegates adopted Resolution 103 in 2013 and the resolution addresses whether attorney-client privilege can apply when lawyers consult designated in-house counsel within their own law firm about issues arising in a current client matter.
The resolution describes several related privilege principles in plain English
In the language quoted in the BNA report, Resolution 103 urges recognition of privilege protection for confidential communications between law firm personnel and the firm’s designated in-house counsel, in a way that parallels how privilege can protect communications between an organization’s employees and that organization’s in-house counsel.
The quoted text also states that a conflict of interest arising from the consultation does not itself create an exception to the attorney-client privilege, even when the discussion involves a potentially viable claim by a current client against the firm.
Another part of the quoted text addresses the “fiduciary exception” concept by stating that, if a jurisdiction recognizes such an exception, it does not apply to confidential communications where law firm personnel (acting on behalf of the firm in its individual capacity) seek legal advice from in-house or outside counsel about the firm’s own duties, obligations, and potential liabilities to a current client.
Attorney client privilege is often described as an evidence rule that protects certain communications
Federal and state courts often describe attorney-client privilege as a long-recognized part of the legal system that can protect communications made for the purpose of obtaining legal advice, and courts commonly apply defined elements to decide whether the protection applies in a given dispute.
Privilege disputes often turn on confidentiality and waiver
A common issue is whether a communication was kept confidential “without the presence of strangers,” and courts may treat disclosure to third parties or other conduct as waiver depending on the governing law and the facts found by the court.
Courts often address privilege disagreements through discovery motions
In civil litigation and related proceedings, privilege claims frequently arise during document discovery, and courts may resolve disputes through orders addressing the scope of discovery and whether documents must be produced, such as in In re Orion HealthCorp, Inc., Decision and Order Granting Motion to Compel Production of Documents (Bankr. E.D.N.Y. Dec. 6, 2022).
The ABA resolution is policy oriented rather than a binding rule by itself
As described in the BNA report, Resolution 103 is framed as an ABA policy statement urging courts and legislatures to support specific principles, which is different from a statute, a court rule, or a controlling judicial decision.
