Chaimov v. Dept. of Admin. Services

As the Supreme Court said in Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or 476, 487-88, 326 P3d 1181 (2014), although the statutory privilege “requires the existence of an ‘attorney-client relationship’ in some sense” (emphasis added), the existence of a sufficient relationship for the privilege is determined exclusively by reference to the statutory privilege rule itself—not by reference to other sources of law defining an attorney-client relationship.

Plaintiff filed a petition with the Attorney General, seeking an order to require the Department of Administrative Services (DAS) to produce copies of particular request forms in response to the denial of his request. The trial court, agreeing with Plaintiff’s argument that the Office of Legislative Counsel and state agencies cannot have an attorney-client relationship and that the request forms were not subject to an exemption as privileged attorney-client communication, granted Plaintiff’s motion for summary judgment. As the Supreme Court said in Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or 476, 487-88, 326 P3d 1181 (2014), although the statutory privilege “requires the existence of an ‘attorney-client relationship’ in some sense” (emphasis added), the existence of a sufficient relationship for the privilege is determined exclusively by reference to the statutory privilege rule itself—not by reference to other sources of law defining an attorney-client relationship. The Court explained that this depends on “whether they have a lawyer-client relationship as defined in OEC 503 that subjects their communications to the privilege defined in OEC 503.” The Court found that the State met its burden and concluded that “the request forms are exempt from disclosure under the lawyer-client privilege described in OEC 503.” Reversed and remanded.