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