Section 502

(a) Definitions. As used in this section, the following words shall have the following meanings:

(1) A “client” is a person, public officer, or corporation, association, or other entity, either public or private, who is rendered professional legal services by an attorney, or who consults an attorney with a view to obtaining professional legal services.

(2) A “representative of the client” may include the client’s agent or employee.

(3) An “attorney” is a person who is authorized to practice law.

(4) A “representative of the attorney” is one used by the attorney to assist the attorney in providing professional legal services.

(5) A communication is “confidential” if it is not intended to be disclosed to third persons other than those to whom disclosure is made to obtain or provide professional legal services to the client, and those reasonably necessary for the transmission of the communication.

(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent others from disclosing confidential communications made for the purpose of obtaining or providing professional legal services to the client as follows:

(1) between the client or the client’s representative and the client’s attorney or the attorney’s representative,

(2) between the client’s attorney and the attorney’s representative,

(3) between those involved in a joint defense,

(4) between representatives of the client or between the client and a representative of the client, or

(5) among attorneys and their representatives representing the same client.

(c) Who May Claim the Privilege. The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization whether or not in existence at the time the privilege is claimed. The attorney or the attorney’s representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.

(d) Exceptions. The attorney-client privilege does not apply to the following:

(1) Furtherance of Crime or Fraud. If the services of the attorney were sought or obtained to commit or to plan to commit what the client knew or reasonably should have known was a crime or fraud;

(2) Claimants Through Same Deceased Client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

(3) Breach of Duty or Obligation. As to a communication relevant to an issue of breach of duty between an attorney and client;

(4) Document Attested by an Attorney. As to a communication relevant to an issue concerning an attested document to which the attorney is an attesting witness;

(5) Joint Clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any one of them to an attorney retained or consulted in common, when offered in an action between or among any of the clients; or

(6) Public Officer or Agency. [Privilege not recognized]

NOTE

Introduction. As stated in Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 870 N.E.2d 33 (2007),

“the attorney-client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice. . . . One obvious role served by the attorney-client privilege is to enable clients to make full disclosure to legal counsel of all relevant facts, no matter how embarrassing or damaging these facts might be, so that counsel may render fully informed legal advice. In a society that covets the rule of law, this is an essential function.”

Id. at 448–449, 870 N.E.2d at 37–38.

“The existence of the privilege and the applicability of any exception to the privilege is a question of fact for the judge. The burden of proving that the attorney-client privilege applies to a communication rests on the party asserting the privilege. This burden extends not only to a showing of the existence of the attorney-client relationship but to all other elements involved in the determination of the existence of the privilege, including (1) the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived.” (Citations omitted.)

Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 421, 681 N.E.2d 838, 840 (1997). This privilege is not self-executing. See District Attorney for Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633–634, 481 N.E.2d 1128, 1131 (1985).

Subsection (a)(1). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(a)(1), reflects Massachusetts practice. The term “client” includes more than simply natural persons. See Mass. R. Prof. C. 1.13 (1998). See also Matter of a Grand Jury Investigation, 437 Mass. 340, 351–352, 772 N.E.2d 9, 17–18 (2002); Bays v. Theran, 418 Mass. 685, 690, 639 N.E.2d 720, 723 (1994).

The attorney-client privilege survives the death of the client. Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 483, 562 N.E.2d 69, 70 (1990).

Subsection (a)(2). This subsection is derived from Ellingsgard v. Silver, 352 Mass. 34, 40, 223 N.E.2d 813, 817 (1967) (“The attorney-client privilege may extend to communications from the client’s agent or employee to the attorney.”). The Supreme Judicial Court has yet to determine the scope of the privilege when the client is an organization such as a corporation. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep’t of Mental Retardation, 424 Mass. 430, 457 n.26, 677 N.E.2d 127, 145 n.26 (1997) (attorney-client privilege not automatically extended to all employees of corporation who communicate with corporation’s attorney). Cf. Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347, 357, 764 N.E.2d 825, 833 (2002) (a lawyer is barred from ex parte contact with employees of a corporation, under the rule of professional responsibility prohibiting a lawyer from communicating with a represented party in the absence of that party’s counsel, only as to employees who exercise managerial responsibility with regard to the subject of pending litigation, those alleged to have committed wrongful actions at issue in the litigation, and employees with authority to make decisions about the course of litigation or having management authority sufficient to speak for and bind the corporation).

Subsection (a)(3). This subsection is derived from Barnes v. Harris, 61 Mass. 576, 576–577 (1851).

Subsection (a)(4). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(a)(4), reflects Massachusetts practice. In Foster v. Hall, 29 Mass. 89 (1831), the court explained that the attorney-client privilege applied to communications to members of the legal profession, and also to those who “facilitate the communication between attorney and client, as interpreters, agents, and attorneys’ clerks” (citations omitted). Id. at 94.

Subsection (a)(5). This subsection, which is derived from Proposed Mass. R. Evid. 502(a)(5), reflects Massachusetts practice. See Foster v. Hall, 29 Mass. 89, 92 (1831). See also Peters v. Wallach, 366 Mass. 622, 627, 321 N.E.2d 806, 809 (1975) (“Communications between an attorney and his client are not privileged, though made privately, if it is understood that the information communicated is to be conveyed to others. The client’s grant of authority to settle must be communicated to the other party to the settlement and is thus not confidential.” [Citations omitted.]).

Subsection (b). Subsections (b)(1), (2), (4), and (5) are derived from Proposed Mass. R. Evid. 502(b), which was cited with approval in Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 115, 676 N.E.2d 436, 440 (1997) (“The attorney-client privilege applies only when the client’s communication was for the purpose of facilitating the rendition of legal services.”). Subsection (b)(3) is derived from Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 614–617, 870 N.E.2d 1105, 1110–1112 (2007), where the Supreme Judicial Court recognized the “common interest doctrine” and adopted the principle of the Restatement (Third) of the Law Governing Lawyers § 76(1) (2000), which states as follows:

“If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged . . . that relates to the matter is privileged as against third persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communication.”

This principle expresses the component of the doctrine known as “joint defense agreements,” “joint defense privilege,” or “joint prosecution privilege.” See also Proposed Mass. R. Evid. 502(b)(3). In Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. at 618, 870 N.E.2d at 1113, the Supreme Judicial Court explained that the common-interest doctrine depends on communications that are protected by the attorney-client privilege and is simply an exception to the waiver of the privilege. Thus, there is no requirement of a writing. Id. at 618, 870 N.E.2d at 1113. The court also explained that the legal interests of the parties do not have to be identical in order for the common-interest doctrine to apply. Parties will be deemed to have a common interest when they “share a sufficiently similar interest and attempt to promote that interest by sharing a privileged communication” (quotation and citation omitted). Id. at 619, 870 N.E.2d at 1113. Finally, the Supreme Judicial Court also noted that Section 76(2) of the Restatement is consistent with Massachusetts law. Id. at 614 n.4, 870 N.E.2d at 1110 n.4. Section 76(2) states that “[u]nless the clients have agreed otherwise, a communication described in Subsection (1) is not privileged as between clients described in Subsection (1) in a subsequent adverse proceeding between them.” Id., quoting Restatement (Third) of the Law Governing Lawyers § 76(2) (2000).

Subsection (c). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(c), reflects Massachusetts practice. See District Attorney for the Norfolk Dist. v. Magraw, 417 Mass. 169, 172–173, 628 N.E.2d 24, 26 (1994).

Subsection (d)(1). This subsection is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(1), which the Supreme Judicial Court described as an adequate definition of the crime-fraud exception to the attorney-client privilege. Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 112, 676 N.E.2d 436, 439 (1997). See also Mass. R. Prof. C. 1.6(b)(1) (1998). “Th[e] exception applies only if the client or prospective client seeks advice or assistance in furtherance of criminal conduct.” Purcell v. District Attorney for the Suffolk Dist., 424 Mass. at 115, 676 N.E.2d at 441.

Subsection (d)(2). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(2), reflects Massachusetts practice. See Phillips v. Chase, 201 Mass. 444, 449, 87 N.E. 755, 757–758 (1909).

Subsection (d)(3). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(3), reflects Massachusetts practice. See Mass. R. Prof. C. 1.6(b) (1998); GTE Prods. Corp. v. Stewart, 421 Mass. 22, 32, 653 N.E.2d 161, 167–168 (1995) (there are limits to the extent to which in-house counsel may disclose client confidences in pursuing a claim of wrongful discharge); Commonwealth v. Brito, 390 Mass. 112, 119, 453 N.E.2d 1217, 1221 (1983) (“[T]rial counsel’s obligation may continue to preserve confidences whose disclosure is not relevant to the defense of the charge of his ineffectiveness as counsel.”).

Subsection (d)(4). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(4), reflects Massachusetts practice. See Foster v. Hall, 29 Mass. 89, 98–99 (1831).

Subsection (d)(5). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(5), reflects Massachusetts practice. See Beacon Oil Co. v. Perelis, 263 Mass. 288, 293, 160 N.E. 892, 894 (1928); Thompson v. Cashman, 181 Mass. 36, 37, 62 N.E. 976, 977 (1902).

Subsection (d)(6). In Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 450, 870 N.E.2d 33, 38 (2007), the Supreme Judicial Court held that “confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.” Thus, the Supreme Judicial Court rejected the proposed limitation on the attorney-client privilege for public employees and governmental entities found in Proposed Mass. R. Evid. 502(d)(6). Id. at 452 n.12, 870 N.E.2d at 40 n.12. Additionally, the Supreme Judicial Court held that its decision in General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 801–806, 711 N.E.2d 589, 592–595 (1999), which states that under the Massachusetts public records statute, G. L. c. 66, § 10, documents held by a State agency are not protected from disclosure under the attorney work-‌product doctrine, but rather enjoy the more limited protection of the so-called “deliberative process” exemption found in G. L. c. 4, § 7, Twenty-‌sixth (d), did not limit the applicability of the attorney-client privilege as to written communications between government officials and entities and their counsel.

“With the attorney-client privilege, the principal focus is on encouraging the client to communicate freely with the attorney; with work-product, it is on encouraging careful and thorough preparation by the attorney. As a result, there are differences in the scope of the protection. For example, the privilege extends only to client communications, while work product encompasses much that has its source outside client communications. At the same time, the privilege extends to client-‌attorney communications whenever any sort of legal services are being provided, but the work-product protection is limited to preparations for litigation.”

Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. at 456, 870 N.E.2d at 43, quoting E.S. Epstein, The Attorney-Client Privilege and the Work-‌Product Doctrine 477 (4th ed. 2001).

Work-Product Doctrine. The work-product doctrine is not an evidentiary privilege, but rather a discovery rule which “protect[s] against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Mass. R. Civ. P. 26(b)(3).

“The work product doctrine, drawn from the well-known case of Hickman v. Taylor, 329 U.S. 495 (1947), is intended to enhance the vitality of an adversary system of litigation by insulating counsel’s work from intrusions, inferences, or borrowings by other parties as he prepares for the contest. Originally developed in connection with civil litigation, the doctrine has been extended to criminal cases. United States v. Nobles, 422 U.S. 225, 238 (1974).” (Citations omitted.)

Ward v. Peabody, 380 Mass. 805, 817, 405 N.E.2d 973, 980 (1980). It is codified in Massachusetts and applicable in both civil and criminal cases. See Mass. R. Civ. P. 26(b)(3); Mass. R. Crim. P. 14(a)(5). The protections afforded by the work-product doctrine can be waived by the attorney. Adoption of Sherry, 435 Mass. 331, 336, 757 N.E.2d 1097, 1102 (2001). See also Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 423, 681 N.E.2d 838, 841 (1997) (no waiver when disclosure of work-product is due to inadvertence and adequate steps were taken to maintain the confidentiality of the information).

Waiver. For issues relating to waiver, see Section 523, Waiver of Privilege.