Cases often turn on the scope of an exception. Recently the Massachusetts Supreme Judicial Court clarified the "sharply limited" scope of the derivative attorney-client privilege, an exception to the basic rule that disclosure of otherwise privileged communications waives the client's right to prevent disclosure of those communications to third parties, whether in litigation or otherwise - even if that disclosure proves fatal to the client's case. See DaRosa v. City of New Bedford, 471 Mass. 446, 463 (2015). The SJC recognized that exception in a 2009 decision, holding that a third party's involvement in otherwise privileged communications would not waive that privilege where "the [third party's] presence is 'necessary' for the 'effective consultation' between client and attorney" such as where the third party's "role is to clarify or facilitate communications between attorney and client." Comm'r of Rev. v. Comcast Corp., 453 Mass. 293, 307-08 (2009).
In our modern global economy, many Massachusetts companies are finding themselves with a need not only for legal advice concerning Massachusetts and U.S. law, but also for legal advice concerning international law and the local laws of foreign countries in which they do business. As a result, foreign legal consultants--foreign lawyers who advise Massachusetts companies and residents on foreign law--are increasingly in demand. In order to avoid running afoul of prohibitions against the unlicensed practice of law, foreign legal consultants must become licensed prior to providing any legal advice in Massachusetts. There are specific rules issued by the Massachusetts Supreme Judicial Court ("SJC") governing the licensing of foreign legal consultants and the limits of their practice. Both foreign attorneys seeking to consult in Massachusetts, and Massachusetts companies seeking to retain foreign legal consultants, should become familiar with these and other applicable rules.