On May 30, in Crimson Trace Corp. v. Davis Wright Tremaine LLP, 326 P.3d 1181 (Or. 2014) (No. CC110810810, SC S061086) (en banc), an en banc decision by the Oregon Supreme Court upheld the law firm in-house privilege and rejected a “fiduciary exception” not found in the Oregon privilege statute.  In an underlying patent infringement matter, defendant DWT represented Crimson Trace.  During the course of that matter, trial counsel consulted with attorneys on DWT’s “Quality Assurance Committee” (QAC), a small group of DWT lawyers who had been designated by the firm as in-house counsel, regarding potential conflicts of interest with respect to DWT’s representation of Crimson Trace. Consultations occurred when Crimson Trace’s litigation opponent, LaserMax, asserted a counterclaim based on DWT’s alleged deceptive omission of information from the patent application submitted to the PTO, and when DWT disclosed the confidential terms of a settlement agreement, which the court found was intentional and damaging to LaserMax.  In this subsequent malpractice action, Crimson Trace sought discovery of communications between the DWT attorneys who represented Crimson Trace and DWT’s QAC attorneys.  The trial court found that the communications with firm counsel satisfied the statutory requirements for privilege, but held that a “fiduciary exception” to the privilege required DWT to disclose communications made while DWT’s representation of Crimson Trace was ongoing.  The Oregon Supreme Court reversed.  First, the court held that the communications with in-house counsel met the three elements for privilege established by Oregon statute: (1) the communications were between a client (the firm) and the client’s lawyer (firm in-house counsel); (2) the communications were intended to be kept confidential; and (3) the communications were made for the purpose of facilitating the rendition of professional legal services to the client.  Second, the court rejected the trial court’s application of a “fiduciary exception” not found in the Oregon statute.  Some courts outside of Oregon have held that, because lawyers owe fiduciary duties to their clients, a firm may not invoke privilege to protect communications between firm lawyers and firm in-house counsel that occur while representation of the client is ongoing.  The Oregon court rejected the “fiduciary exception” as unavailable under Oregon’s statutory framework.  The statute provides for five specific exceptions, which do not include the fiduciary exception.  The court explained that it would be an error to conflate ethical considerations with the separate issue of the scope of the privilege.