Yes. The Massachusetts Supreme Judicial Court (“SJC”) has described the common law attorney-client privilege as follows: “the attorney-client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice.” Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 870 N.E.2d 33, 37 (Mass. 2007).

Not applicable.

In general, the same principles of attorney-client privilege apply in civil and criminal proceedings. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 870 N.E.2d 33, 37 n. 8 (Mass. 2007). One distinction, however, is that a criminal defendant’s constitutional rights may override the privilege. See Commonwealth v. Goldman, 480 N.E.2d 1023, 1028 n.8 (Mass. 1985) (noting the possibility that “common law attorney-client privilege would have to yield to a constitutionally based claim of denial of the right of confrontation or of the right to a fair trial”).

Subject to waiver and limited exceptions, the attorney-client privilege is absolute and government authorities may not require disclosure of attorney-client communications. McCarthy v. Slade Assocs., 972 N.E.2d 1037, 1047 n.25 (Mass. 2012). One notable exception—where government authorities may require disclosure of certain attorney-client communications and legal work products—is the crime-fraud exception. This exception provides that the attorney-client privilege is not applicable where "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.” Purcell v. Dist. Att’y for the Suffolk Dist., 676 N.E.2d 436, 439 (Mass. 1997).

Mass. R. Prof. C. 1.6(a) generally prohibits an attorney from disclosing client confidential information in both civil and criminal proceedings. Mass. R. Prof. C. 1.6(b) provides the limited circumstances in which a lawyer may, in their discretion, disclose client confidential information (e.g., a lawyer may disclose client confidential information “to prevent reasonably certain death or substantial bodily harm”). Additionally, Mass. R. Prof. C. 3.3 requires an attorney to disclose evidence to a tribunal in certain circumstances even if the evidence would otherwise be protected by Rule 1.6 (e.g., where a lawyer knows that a person “has engaged in criminal or fraudulent conduct related to [a] proceeding” for which the lawyer represents a client, the lawyer is required to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal” even if compliance requires disclosure of client confidential information).

Although the SJC has not explicitly declared the applicable test for the scope of attorney-client privilege within a corporation, the Court has consistently cited Upjohn Co. v. United States, 449 U.S. 383 (1981). See Attorney General v. Facebook, Inc., 164 N.E.3d 873, 888 (Mass. 2021) (citing Upjohn to support the extension of the attorney-client privilege to individuals within the corporation); In re Grand Jury Investigation, 772 N.E.2d 9, 20 n. 25 (Mass. 2002) (“We have often cited with approval the broad language of [Upjohn], concerning the underlying purpose of the attorney-client and work-product privileges.”). Massachusetts courts would therefore likely follow the Upjohn rule. Thus, communications between corporate employees and the corporation’s attorneys are privileged where “communications concerned matters within the scope of the employees’ corporate duties,” “the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice,” and the communications were confidential when made and have been kept so by the corporation. Upjohn Co., 449 U.S. at 394-95.

In addition to extending the attorney-client privilege to employees working within a corporation, Massachusetts allows for a “derivative attorney-client privilege” for third-party representatives of a client. Comm’r of Revenue v. Comcast Corp., 901 N.E.2d 1185, 1196 (Mass. 2009). In particular, Massachusetts provides narrow protection to communications that involve a third party who is “nearly indispensable or serve[s] some specialized purpose in facilitating the attorney-client communications.” Id. at 1197.

No, in-house counsel is treated the same as outside counsel for the purposes of attorney-client privilege. See, e.g., RFF Family P’ship, LP v. Burns & Levinson, LLP, 991 N.E.2d 1066, 1070-71 (Mass. 2013) (articulating general attorney-client privilege principles for in-house counsel). For in-house counsel who play both a legal and business role in the company, however, only those communications that are “for the purpose of facilitating the rendition of legal services" are protected. Purcell v. Dist. Att’y for the Suffolk Dist., 676 N.E.2d 436, 440 (Mass. 1997). Thus, any non-legal business advice is not protected under the attorney-client privilege even if it is communicated by in-house counsel.

Not applicable.

Not applicable

Yes, the SJC formally recognized the common interest doctrine in Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 870 N.E.2d 1105, 1108 (Mass. 2007). The SJC described this doctrine as “an exception to waiver of the attorney-client privilege” rather than as a separate doctrine. Id. at 1109.

In articulating the common interest doctrine, the SJC adopted the language of The Restatement (Third) of the Law Governing Lawyers § 76(1) (2000):

If two or more clients with a common interest in a litigated or non-litigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, communication of any such client that otherwise qualifies as privileged . . . that relates to the matter is privileged as against third persons. Any such client may invoke the privilege unless it has been waived by the client who made the communication.

Hanover Ins. Co., 870 N.E.2d at 1110. The Court also clarified that the parties’ interests need not be identical. Id. at 1113. Rather, their interests must be “sufficiently similar” and the communication regarding the matter must be an “attempt to promote that interest.” Id.

No, a common interest agreement does not need to be in writing. Hanover Ins. Co.., 870 N.E.2d at 1113.

Yes, litigation funding is permitted in Massachusetts. Saladini v. Righellis, 687 N.E.2d 1224, 1224 (Mass. 1997). Massachusetts courts will scrutinize litigation finance agreements as to whether they are “fair and reasonable, looking to all of the circumstances at the time the arrangement is made,” however. Id. at 1227. The SJC has noted that some relevant factors include but are not limited to: (i) “the respective bargaining position of the parties at the time the agreement was made”; (ii) “whether both parties were aware of the terms and consequences of the agreement”; (iii) “whether [the party] may have been unable to pursue the lawsuit at all without [the] funds”; and, (iv) the respective amounts of the recovery that would be provided to the parties to the funding agreement. Id.

There are certain rules of professional conduct in Massachusetts that are limitations to this doctrine. First, under Mass. R. Prof. C. 1.8(e), a lawyer is constrained in how and when they may provide litigation funding for their client. In particular, a lawyer may only provide financial assistance to a client in connection with pending or contemplated litigation if (1) it is the advancement of court costs and expenses of litigation or (2) the lawyer is paying court costs and expenses of litigation on behalf of an indigent client. Id. Second, under Mass. R. Prof. C. 1.8(f), a lawyer may only accept the payment of fees from a litigation funder if: “(1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of a client is protected as required by Rule 1.6."

The identity of the litigation funder is not protected by the attorney-client privilege. See Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 870 N.E.2d 1105, 1114 (Mass. 2007) (“[T]the source of payment for legal fees [is] not normally protected by the attorney-client privilege.”). One Massachusetts court also found that the funding agreement itself was not a privileged communication. See Conlon v. Rosa, 12 LCR 292, 293 (Mass. Land Ct. 2004).

However, Massachusetts courts have not had the occasion to decide whether communications with litigation funders are protected by the attorney-client privilege or the work product doctrine. Although a Massachusetts court did suggest that communications disclosing “any mental impressions, conclusions, opinions or legal theories of the plaintiffs’ attorneys” to a litigation funder may be protected, the court did not have to decide the issue. Id.; see also Bank of Am., N.A. v. Deloitte & Touche, LLP, Dkt. No. 06-2218-BLS1, 2008 Mass. Super. LEXIS 173, at *6 (Mass. Super Ct. June 13, 2008) (“Disclosure of the privileged information by the party asserting the attorney work product privilege to a third party does not constitute a waiver unless such disclosure, under the circumstances, is inconsistent with the maintenance of secrecy from the disclosing party's adversary.”).

Yes. See Purcell v. Dist. Att’y for the Suffolk Dist., 676 N.E.2d 436, 439 (Mass. 1997).

Purcell articulates the crime-fraud exception. 676 N.E.2d at 439. The SJC accepted the definition as written in Rule 502(d)(1) of the Proposed Massachusetts Rules of Evidence, which provides that the attorney-client privilege is not applicable “[i]f 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.” Id. The proponent of the exception has the burden to prove its applicability by a preponderance of the evidence. Id. A judge also has the discretion to conduct an in-camera review of the relevant evidence if the proponent provides a factual basis to support a reasonable belief that such review may establish the applicability of the exception. Id.

Yes, the work product doctrine has been codified in Mass. R. Civ. P. 26(b)(3) and Mass. R. Crim. P. 14(a)(5) for civil and criminal proceedings, respectively.

Mass. R. Civ. P. 26(b)(3) protects (1) documents and tangible things that are (2) prepared in anticipation of litigation or for trial (3) by or for another party or by or for that other party’s representative.

The SJC has clarified that “in anticipation of litigation” requires that the litigation be pending or “reasonably anticipated in the near future.” Ward v. Peabody, 405 N.E.2d 973, 980 (Mass. 1980). Furthermore, the SJC has mandated that such materials or communications be “prepared because of the prospect of litigation,” “in light of the nature of the document and the factual situation in the particular case.” Comm’r of Revenue v. Comcast Corp., 901 N.E.2d 1185, 1204 (Mass. 2009). In other words, work product does not have to be created in order to “assist in[] litigation,” but the party must demonstrate that the material would not have been prepared “irrespective of the prospect of litigation.” Id. at 1203, 1205.

Mass. R. Civ. P. 26(b)(3) specifically provides two categories of protection. First, the ordinary work product protection may be overcome “upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Id. Second, Mass. R. Civ. P. 26(b)(3) also requires protection for “the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” In contrast to ordinary work products, “[o]pinion work product is only discoverable, if at all, in rare or extremely unusual circumstances.” Attorney General v. Facebook, Inc., 164 N.E.3d 873, 890 (Mass. 2021) (internal quotation marks omitted).

Mass. R. Crim. P. 14(a)(5) similarly incorporates protection of “records, reports, correspondence, memoranda, or internal documents of the adverse party which are only the legal research, opinions, theories, or conclusions of the adverse party or its attorney and legal staff.” Additionally, the rule protects “statements of a defendant, signed or unsigned, made to the attorney for the defendant or the attorney’s legal staff.” Id. However, Mass. R. Crim. P. 14(a)(1) generally requires the prosecution to disclose evidence to the defendant, including exculpatory evidence and witness statements.

No, Massachusetts courts have not recognized an accountant-client privilege. See In re Grand Jury Subpoena, 569 N.E.2d 852, 854 (Mass. App. Ct. 1991).

There are limited circumstances in which accountant-client communications may receive protection through the derivative attorney-client privilege, however. In particular, the derivative attorney-client privilege will protect communications in which an accountant is translating a client’s financial data into a usable and comprehendible form for the attorney. DaRosa v. New Bedford, 30 N.E.3d 790, 804-05 (Mass. 2015). Simply providing technical or specialized advice to the attorney or client, even if such advice would be critical to the representation of the client, is insufficient. Id. at 805.

Yes, Massachusetts recognizes a mediation privilege by statute. In particular, G. L. c. 233, § 23C provides: “Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding.” Additionally, a mediator’s work product and case files are also protected from disclosure in judicial or administrative proceedings involving the same parties to the mediation. Id. Importantly, as with the attorney-client privilege, a party may waive the mediation privilege by putting the mediation at issue in the case. See Bobick v. U. S. Fid. & Guar. Co., 790 N.E.2d 653, 658 n.11 (Mass. 2003) (finding that an offer made to the plaintiff during mediation was not privileged because the plaintiff put the offer at issue by accusing the defendant of failing to make a reasonable settlement offer).

The privileges outlined in G. L. c. 233, § 23C do not apply to labor dispute mediations. Although communications made during labor dispute mediations are therefore not privileged, other statutory provisions protect the discovery of a mediator’s work product and case file. See G.L. c. 150, § 10A (allowing a mediator in a labor dispute to refuse to reveal information provided in the course of the mediation in any administrative, civil, or arbitration proceeding); G.L. c. 150E, § 9 (same).

Yes. In general, a settlement offer or acceptance, as well as conduct or statements made during compromise negotiations, are not admissible “to prove or disprove the validity or amount of a disputed claim.” Morea v. Cosco, Inc., 664 N.E.2d 822, 824 (Mass. 1996) (adopting in principle Proposed Mass. R. Evid. 408). But see Zucco v. Kane, 789 N.E.2d 115, 120 (Mass. 2003) (suggesting the SJC has not adopted Proposed Mass. R. Evid. 408 in whole).

Massachusetts law does allow for this evidence to be admitted for other purposes, however, such as “proving a witness’s bias or prejudice or other state of mind, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” Mass. G. Evid. § 408(b); see also Cottam v. CVS Pharm., 764 N.E.2d 814, 824 (Mass. 2002) (witness bias); Dahms v. Cognex Corp., 914 N.E.2d 872, 880 (Mass. 2009) (state of mind); Morea, 664 N.E.2d at 824 (mitigation of damages).