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Robyn Aoyagi Weighs in on Supreme Court Issue

When the Oregon Supreme Court issued a writ of mandamus last year in a case involving the application of attorney-client privilege to law firm in-house counsel, appellate litigator Robyn Ridler Aoyagi filed an amicus curiae ("friend of the court") brief on behalf of seven Oregon law firms, including five of the seven largest law firms in Oregon (by number of Oregon lawyers). The issue presented to the Oregon Supreme Court was one that has received significant national attention in recent years.
 
In its decision last year, the Oregon Supreme Court joined several other state supreme courts in holding that law firm lawyers may seek advice from designated in-house counsel in the same manner as outside counsel without forfeiting attorney-client privilege. Whether an attorney-client relationship exists between the lawyer and the in-house counsel will depend on the facts of the particular case. However, the ruling is a relief to law firms who previously risked forced disclosure of confidential information. It has been increasingly common over the last decade for law firms to appoint in-house counsel to address legal issues that arise for the law firm.
 
In her amicus curiae brief, Aoyagi argued that Oregon law protects such communications as privileged and does not allow for a judicially-created exception for law firm in-house counsel. Aoyagi also argued that not protecting such communications would discourage lawyers in firms from seeking advice from in-house counsel immediately at the first sign of any potential problem. In many cases, Aoyagi noted, obtaining advice from a lawyer early may avoid any problem ever developing and maximize the likelihood that the client will get the best possible representation.
 
The Supreme Court agreed and held that such communications are subject to attorney-client privilege. "The court's decision makes clear that anyone who seeks legal advice may rely on the attorney-client privilege, including lawyers," says Aoyagi. "Maintaining and enforcing the attorney-client privilege in litigation—including when law firm lawyers seek advice from in-house counsel – will result in better, more informed decisions on complicated issues and fewer ethical violations."
 
A copy of the Court's decision is available here.

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