ORS 40.225
Rule 503. Lawyer-client privilege


(1)

As used in this section, unless the context requires otherwise:

(a)

“Client” means:

(A)

A person, public officer, corporation, association or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

(B)

A person, public officer, corporation, association or other organization or entity, either public or private, who consults a lawyer referral service with a view to obtaining professional legal services from a lawyer.

(b)

“Confidential communication” means a communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(c)

“Lawyer” means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

(d)

“Lawyer referral service” means an entity that, as a regular part of its business, refers potential clients to lawyers, including but not limited to a public nonprofit entity sponsored or operated by the Oregon State Bar.

(e)

“Representative of the client” means:

(A)

A principal, an officer or a director of the client; or

(B)

A person who has authority to obtain professional legal services, or to act on legal advice rendered, on behalf of the client, or a person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the person’s scope of employment for the client.

(f)

“Representative of the lawyer” means one employed to assist the lawyer in the rendition of professional legal services, but does not include a physician making a physical or mental examination under ORCP 44.

(2)

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

(a)

Between the client or the client’s representative and the client’s lawyer or a representative of the lawyer;

(b)

Between the client’s lawyer and the lawyer’s representative or the client’s lawyer referral service;

(c)

By the client or the client’s lawyer to a lawyer representing another in a matter of common interest;

(d)

Between representatives of the client or between the client and a representative of the client;

(e)

Between lawyers representing the client; or

(f)

Between the client or a representative of the client and a lawyer referral service.

(3)

The privilege created by this section may be claimed by the client, a guardian or conservator of the client, 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. The person who was the lawyer or lawyer referral service or the lawyer’s representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.

(4)

There is no privilege under this section:

(a)

If the services of the lawyer or lawyer referral service were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

(b)

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;

(c)

As to a communication relevant to an issue of breach of duty by the lawyer or lawyer referral service to the client or by the client to the lawyer or lawyer referral service;

(d)

As to a communication relevant to an issue concerning an attested document to which the lawyer or lawyer referral service is an attesting witness; or

(e)

As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

(5)

Notwithstanding ORS 40.280 (Rule 511. Waiver of privilege by voluntary disclosure), a privilege is maintained under this section for a communication made to the office of public defense services established under ORS 151.216 (Duties) for the purpose of seeking preauthorization for or payment of nonroutine fees or expenses under ORS 135.055 (Compensation and expenses of appointed counsel).

(6)

Notwithstanding subsection (4)(c) of this section and ORS 40.280 (Rule 511. Waiver of privilege by voluntary disclosure), a privilege is maintained under this section for a communication that is made to the office of public defense services established under ORS 151.216 (Duties) for the purpose of making, or providing information regarding, a complaint against a lawyer providing public defense services.

(7)

Notwithstanding ORS 40.280 (Rule 511. Waiver of privilege by voluntary disclosure), a privilege is maintained under this section for a communication ordered to be disclosed under ORS 192.311 (Definitions for ORS 192.311 to 192.478) to 192.478 (Exemption for Judicial Department). [1981 c.892 §32; 1987 c.680 §1; 2005 c.356 §1; 2005 c.358 §1; 2007 c.513 §3; 2009 c.516 §1; 2018 c.2 §1]

Source: Section 40.225 — Rule 503. Lawyer-client privilege, https://www.­oregonlegislature.­gov/bills_laws/ors/ors040.­html.

See also annotations under ORS 44.040 in permanent edition.

Notes of Decisions

Under former similar statute (ORS 44.040)

Testimony of defendant’s former attorney that he had informed defendant of date of trial did not violate attorney-client privilege. State v. Bilton, 36 Or App 513, 585 P2d 50 (1978)

Privilege does not apply to prevent disclosure of creation or existence of attorney-client relationship or fact that client consulted with attorney about matter. State v. Bilton, 36 Or App 513, 585 P2d 50 (1978)

Under Evidence Code

Notification of defendant by former counsel of date set for appearance for arraignment is admissible over objection of defendant that it is protected by attorney-client privilege. State v. Ogle, 297 Or 84, 682 P2d 267 (1984)

“Representative of a client,” as defined in this rule, refers only to representatives of clients that are corporations or similar business entities. State v. Jancsek, 302 Or 270, 730 P2d 14 (1986); Little v. Dept. of Justice, 130 Or App 668, 883 P2d 272 (1994), Sup Ct review denied

Where defendant’s lawyer had in his possession letter written by defendant to third person, trial court’s order to produce letter did not violate defendant’s lawyer-client privilege because letter was not between persons described in this rule. State v. Jancsek, 302 Or 270, 730 P2d 14 (1986)

Under this rule, disclosure of dates on which attorney conferred with client did not fall within attorney-client privilege because it did not call for disclosure of content of any communication. State v. Keenan/Waller, 91 Or App 481, 756 P2d 51 (1988), aff’d 307 Or 515, 771 P2d 244 (1989)

In excess liability action, trial court properly applied attorney client privilege to documents relating to assignment agreement between insured and his assignees, depositions and file materials related to underlying medical malpractice case and material in files of insured’s attorney relating to excess liability action. Stumpf v. Continental Casualty Co., 102 Or App 302, 794 P2d 1228 (1990)

Release of otherwise privileged communication between attorney and client pursuant to request for production under ORCP 43 constitutes waiver of privilege as there is no requirement that client expressly consent to waive privilege. Goldsborough v. Eagle Crest Partners, Ltd., 105 Or App 499, 805 P2d 723 (1991), aff’d314 Or 336, 838 P2d 1069 (1992)

Threshold basis for conducting in camera review of allegedly privileged attorney-client communications does not have to be based on evidence independent of contested communications. State v. Charlesworth/Parks, 151 Or App 100, 951 P2d 153 (1997), Sup Ct review denied

Legal advice to representative of client is “from” client’s lawyer if originating with lawyer, even though it may be communicated to recipient by other individuals covered by privilege. State ex rel OHSU v. Haas, 325 Or 492, 942 P2d 261 (1997)

“Representative of the client” includes employee of any rank, whether or not regular contact with lawyer is part of job. State ex rel OHSU v. Haas, 325 Or 492, 942 P2d 261 (1997)

Before trial court may engage in in camera review at request of party opposing privilege on basis of crime-fraud exception, party must present evidence to support reasonable belief that review may yield evidence that establishes exception’s applicability. Frease v. Glazer, 330 Or 364, 4 P3d 56 (2000)

Party opposing in camera review of privileged material may seek mandamus immediately to prevent review or following review may seek mandamus based upon: 1) insufficient evidence to support reasonable belief that review would reveal applicability of crime-fraud exception; or 2) court determination that exception applies to materials reviewed. Frease v. Glazer, 330 Or 364, 4 P3d 56 (2000)

Opinion of nontestifying expert based upon observation independent of confidential communications or confidential information does not become inadmissible due solely to expert being employed by party. State v. Riddle, 330 Or 471, 8 P3d 980 (2000)

Nonexistence of privilege extends to all actions, suits and proceedings alleging breach of duty by lawyer, including petitions for post-conviction relief. Petersen v. Palmateer, 172 Or App 537, 19 P3d 364 (2001), Sup Ct review denied

To have common interest, parties must share legal interest. Port of Portland v. Oregon Center for Environmental Health, 238 Or App 404, 243 P3d 102 (2010), Sup Ct review denied

To have common interest, parties do not need to have identical interests. Port of Portland v. Oregon Center for Environmental Health, 238 Or App 404, 243 P3d 102 (2010), Sup Ct review denied

Communications between attorneys who are members of firm and group of attorneys at same firm that serves as in-house counsel for attorneys may be protected by attorney-client privilege. Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or 476, 326 P3d 1181 (2014)

Subsection (4) of this section includes complete list of exceptions to attorney-client privilege and does not include fiduciary exception to privilege. Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or 476, 326 P3d 1181 (2014)

Breach of duty exception to attorney-client privilege permits disclosures of information only as reasonably necessary for lawyer to defend against breach of duty allegations. Longo v. Premo, 355 Or 525, 326 P3d 1152 (2014)

Attorney-client privileged documents that also are public records older than 25 years are required to be disclosed under public records law, and ordered disclosure of such documents does not constitute waiver of privilege. City of Portland v. Bartlett, 304 Or App 580, 468 P3d 980 (2020), Sup Ct review allowed

Legislative Counsel and state agencies are in lawyer-client relationship with respect to agency requests for bill drafts. Chaimov v. Dept. of Admin. Services, 314 Or App 253, 498 P3d 830 (2021), Sup Ct review allowed

Law Review Citations

Under Evidence Code

19 WLR 633 (1983); 24 WLR 160 (1988); 46 WLR 539 (2010)

40.010
Rule 100. Short title
40.015
Rule 101. Applicability of Oregon Evidence Code
40.020
Rule 102. Purpose and construction
40.025
Rule 103. Rulings on evidence
40.030
Rule 104. Preliminary questions
40.035
Rule 105. Limited admissibility
40.040
Rule 106. When part of transaction proved, whole admissible
40.060
Rule 201(a). Scope
40.065
Rule 201(b). Kinds of facts
40.070
Rules 201(c) and 201(d). When mandatory or discretionary
40.075
Rule 201(e). Opportunity to be heard
40.080
Rule 201(f). Time of taking notice
40.085
Rule 201(g). Instructing the jury
40.090
Rule 202. Law that is judicially noticed
40.105
Rule 305. Allocation of the burden of persuasion
40.110
Rule 306. Instructions on the burden of persuasion
40.115
Rule 307. Allocation of the burden of producing evidence
40.120
Rule 308. Presumptions in civil proceedings
40.125
Rule 309. Presumptions in criminal proceedings
40.130
Rule 310. Conflicting presumptions
40.135
Rule 311. Presumptions
40.150
Rule 401. Definition of “relevant evidence.”
40.155
Rule 402. Relevant evidence generally admissible
40.160
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay
40.170
Rule 404. Character evidence
40.172
Rule 404-1. Pattern, practice or history of abuse
40.175
Rule 405. Methods of proving character
40.180
Rule 406. Habit
40.185
Rule 407. Subsequent remedial measures
40.190
Rule 408. Compromise and offers to compromise
40.195
Rule 409. Payment of medical and similar expenses
40.200
Rule 410. Withdrawn plea or statement not admissible
40.205
Rule 411. Liability insurance
40.210
Rule 412. Sex offense cases
40.211
Rule 412-1. Evidence not admissible in civil proceeding involving sexual misconduct
40.215
Rule 413. Measures and assessments intended to minimize impact of or plan for natural disaster
40.225
Rule 503. Lawyer-client privilege
40.227
Rule 503-1. Right of client to communicate with lawyer
40.230
Rule 504. Psychotherapist-patient privilege
40.235
Rule 504-1. Physician-patient privilege
40.240
Rule 504-2. Nurse-patient privilege
40.245
Rule 504-3. School employee-student privilege
40.250
Rule 504-4. Regulated social worker-client privilege
40.252
Rule 504-5. Communications revealing intent to commit certain crimes
40.255
Rule 505. Spousal privilege
40.260
Rule 506. Member of clergy-penitent privilege
40.262
Rule 507. Counselor-client privilege
40.264
Rule 507-1. Certified advocate-victim privilege
40.265
Rule 508a. Stenographer-employer privilege
40.270
Rule 509. Public officer privilege
40.272
Rule 509-1. Sign language interpreter privilege
40.273
Rule 509-2. Non-English-speaking person-interpreter privilege
40.274
Rule 509-3. Legislative branch offsite process counselor privilege
40.275
Rule 510. Identity of informer
40.280
Rule 511. Waiver of privilege by voluntary disclosure
40.285
Rule 512. Privileged matter disclosed under compulsion or without opportunity to claim privilege
40.290
Rule 513. Comment upon or inference from claim of privilege
40.295
Rule 514. Effect on existing privileges
40.310
Rule 601. General rule of competency
40.315
Rule 602. Lack of personal knowledge
40.320
Rule 603. Oath or affirmation
40.325
Rule 604. Interpreters
40.330
Rule 605. Competency of judge as witness
40.335
Rule 606. Competency of juror as witness
40.345
Rule 607. Who may impeach
40.350
Rule 608. Evidence of character and conduct of witness
40.355
Rule 609. Impeachment by evidence of conviction of crime
40.360
Rule 609-1. Impeachment for bias or interest
40.365
Rule 610. Religious beliefs or opinions
40.370
Rule 611. Mode and order of interrogation and presentation
40.375
Rule 612. Writing used to refresh memory
40.380
Rule 613. Prior statements of witnesses
40.385
Rule 615. Exclusion of witnesses
40.405
Rule 701. Opinion testimony by lay witnesses
40.410
Rule 702. Testimony by experts
40.415
Rule 703. Bases of opinion testimony by experts
40.420
Rule 704. Opinion on ultimate issue
40.425
Rule 705. Disclosure of fact or data underlying expert opinion
40.430
Rule 706. Impeachment of expert witness by learned treatise
40.450
Rule 801. Definitions for ORS 40.450 to 40.475
40.455
Rule 802. Hearsay rule
40.460
Rule 803. Hearsay exceptions
40.465
Rule 804. Hearsay exceptions when the declarant is unavailable
40.470
Rule 805. Hearsay within hearsay
40.475
Rule 806. Attacking and supporting credibility of declarant
40.505
Rule 901. Requirement of authentication or identification
40.510
Rule 902. Self-authentication
40.515
Rule 903. Subscribing witness’ testimony unnecessary
40.550
Rule 1001. Definitions for ORS 40.550 to 40.585
40.555
Rule 1002. Requirement of original
40.560
Rule 1003. Admissibility of duplicates
40.562
Rule 1003-1. Admissibility of reproduction
40.565
Rule 1004. Admissibility of other evidence of contents
40.570
Rule 1005. Public records
40.575
Rule 1006. Summaries
40.580
Rule 1007. Testimony or written admission of party
40.585
Rule 1008. Functions of court and jury
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