For years, I have roundly criticized “peer review” statutes, which permit doctors to conduct private discussions about medical errors and to refuse to tell even the patient about the discussion. The principle behind these statutes, which make these discussions privileged in all 50 states, is that doctors won’t tell the truth if they know anyone might find out about it. The premise is that health care will be improved by allowing doctors to discuss their mistakes freely among themselves.
Now, the Supreme Judicial Court has decided that lawyers are no better than doctors in terms of honesty and openness. In a recent decision, RFF Family Partnership LP v. Burns & Levinson LLP, the Court held that a member of a law firm could have secret conversations among themselves to discuss a threatened malpractice claim by an active client of the firm. The result strikes me as completely inconsistent with the fiduciary duty that we as lawyers have to put our clients’ interests above our own.
In RFF Family Partnership, the client sent the firm a letter complaining that the firm had failed to identify and pay off an existing mortgage, and threatening a lawsuit for legal malpractice. The attorneys representing the client met with the firm’s “ethics council” to discuss the firm’s liability and the best course of action. The firm represented the client at the time of the discussion and continued the representation for sometime thereafter.
Rejecting the client’s argument that the firm was placing its own interests above its fiduciary duty to the client, the SJC held that the communications with the in-house ethics expert were protected. The Court reasoned that this would benefit clients by encouraging lawyers to get dispassionate advice about whether to withdraw from representing a current client who threatens a lawsuit so that the lawyers would not withdraw “prematurely or without careful advice.”
The court placed four conditions on a law firm’s ability to hide behind the attorney-client privilege: 1) the firm must designate one of its lawyers to represent the firm as in-house counsel; 2) the designated lawyer must not have performed any work on the case that is the subject of the potential malpractice claim; 3) the firm cannot bill the client for the time spent discussing the potential claim with in-house counsel (really?), and 4) the communications must be made in confidence and kept confidential.
But as someone who has railed against peer review secrecy in the medical profession, I am disturbed by the idea that the legal profession should be seeking a similar foxhole. So long as we represent a client, our first obligation is to that client. If we’ve made a mistake, we should be accountable. To allow lawyers to hide conversations from their clients poses a very real likelihood that the lawyer’s own interests will take precedence over the client’s. At a minimum, it creates an unsavory appearance that the lawyer is looking out for himself, at the client’s expense. These results are wholly inconsistent with the high ethical standards that the legal profession has always aspired to attain.