Breach-Of-Duty Exception Explored In Oregon Opinion

October 19, 2023

The Oregon Supreme Court issued a peremptory writ of mandamus in a matter involving attorney-client privilege

An exception to the attorney-client privilege applies to communications that are “relevant to an issue of breach of duty” between an attorney and client. OEC 503(4)(c). This mandamus proceeding requires us to define one boundary of that breach-of-duty exception: whether the exception applies only to communications between the parties directly involved in the alleged breach—that is, communications between the client and the allegedly breaching attorney (or, alternatively, communications between the attorney and the allegedly breaching client). Based on the text, context, and legislative history of OEC 503(4)(c), we conclude that the breach-of-duty exception applies only to communications between the parties directly involved in the alleged breach. The trial court therefore erred when it applied the breach-of-duty exception to communications beyond that scope.

The case

The matter underlying this mandamus proceeding is a legal malpractice action brought by Hill against his former attorney, Johnson, who had represented Hill in a marriage dissolution proceeding. Hill alleges that, at the conclusion of his dissolution proceeding, Johnson signed a stipulated supplemental judgment on his behalf without his knowledge or permission. According to Hill, the stipulated supplemental judgment provided Hill’s ex-wife certain proceeds out of his pension plan that exceeded the amount to which he had previously agreed.

Hill alleges that, months later, when he learned that the stipulated supplemental judgment included the disputed pension proceeds, he asked Johnson to correct it. When that was not done to Hill’s satisfaction, he hired new trial counsel, Fowler, to repair Johnson’s alleged error. Fowler moved the trial court to invalidate the supplemental judgment. The trial court denied that motion. Hill then hired appellate counsel, Daniels, to repair Johnson’s alleged error by challenging the trial court’s order on appeal.

Holding

we agree with Hill that the breach-of-duty exception, codified in OEC 503(4)(c), applies only to communications between the client and the attorney who are directly involved in the alleged breach. In this case, where Hill has alleged that Johnson breached a duty of care owed to him, the breach-of-duty exception applies only to communications between Hill and Johnson. As a result, the trial court erred in applying the breach-of-duty exception to communications that Hill had with counsel other than Johnson responsive to RFP 10, RFP 26, and RFP 45.

(Mike Frisch)

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Privilege