2015 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) 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.

(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; 2009 c.516 §1]

(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

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)

Law Review Cita­tions

Under Evidence Code

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

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)

Where state law completely precludes reliable, ma­te­ri­ally exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitu­tion. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), aff'd State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

Oregon Evidence Code articulates min­i­mum standards of reliability that apply to many types of evidence for admissibility, including eyewitness identifica­tion evidence, and parties must employ code to address admissibility of eyewitness testimony. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

Law Review Cita­tions

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

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.


1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.