ORS 40.225¹
Rule 503. Lawyer-client privilege

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

(a) "Client" means 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) "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) "Representative of the client" means a principal, an employee, an officer or a director of the client:

(A) Who provides the client’s lawyer with information that was acquired during the course of, or as a result of, such person’s relationship with the client as principal, employee, officer or director, and is provided to the lawyer for the purpose of obtaining for the client the legal advice or other legal services of the lawyer; or

(B) Who, as part of such person’s relationship with the client as principal, employee, officer or director, seeks, receives or applies legal advice from the client’s lawyer.

(e) "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;

(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; or

(e) Between lawyers representing the client.

(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 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 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 to the client or by the client to the lawyer;

(d) As to a communication relevant to an issue concerning an attested document to which the lawyer 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 192.410 (Definitions for ORS 192.410 to 192.505) to 192.505 (Exempt and nonexempt public record to be separated). [1981 c.892 §32; 1987 c.680 §1; 2005 c.356 §1; 2005 c.358 §1; 2007 c.513 §3]

Note: The amendments to 40.225 (Rule 503. Lawyer-client privilege) by section 1, chapter 356, Oregon Laws 2005, and section 1, chapter 358, Oregon Laws 2005, apply to communications made on or after January 1, 2006. See section 2, chapter 356, Oregon Laws 2005, and section 2, chapter 358, Oregon Laws 2005.

Note: Section 6, chapter 513, Oregon Laws 2007, provides:

Sec. 6. Section 2 of this 2007 Act [192.423 (Condensation of public record subject to disclosure)] and the amendments to ORS 40.225 (Rule 503. Lawyer-client privilege), 192.460 (Procedure to review denial of right to inspect other public records) and 192.502 (Other public records exempt from disclosure) by sections 3 to 5 of this 2007 Act apply to public records created on or after the effective date of this 2007 Act [June 20, 2007]. [2007 c.513 §6]

(Rule 503)

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

Law Review Cita­tions

Under Evidence Code

19 WLR 633 (1983); 24 WLR 160 (1988)

Chapter 40

Evidence Code

Annota­tions are listed under the heading "Under former similar statute" if they predate the adop­tion of the Evidence Code, which went into effect January 1, 1982.

Chapter 40

(Generally)

Notes of Decisions

General rule is that polygraph evidence is inadmissible in pro­ceed­ing governed by Oregon Evidence Code. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

Party could introduce results of polygraph test taken by spouse for purpose of showing that response of party upon learning polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

Law Review Cita­tions

59 OLR 43 (1980); 19 WLR 343 (1983)

1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­Archive/­2007ors40.­pdf (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­040ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information