494 October 19, 2023 No. 30

IN THE SUPREME COURT OF THE 

STATE OF OREGON

Thomas HILL,

Plaintiff-Relator,

v.

Ronald M. JOHNSON,

Defendant-Adverse Party.

(CC 20CV31237) (SC S069766)

Original proceeding in mandamus.*

Argued and submitted May 11, 2023.

Ryan D. Harris, Vial Fotheringham LLP, Lake Oswego, 

argued the cause and filed the briefs for plaintiff-relator. 

Also on the briefs was Matthew A. Martin.

Nathan G. Steele, The Steele Law Firm, P.C., Bend, argued

the cause and filed the brief for defendant-adverse party.

Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog,

Bushong, James, and Masih, Justices.**

GARRETT, J.

A peremptory writ of mandamus shall issue.

______________

* On petition for writ of mandamus from an order of Deschutes County 

Circuit Court, Michelle A. McIver, Judge.

** Balmer, Senior Judge, Justice pro tempore, participated in oral argument, 

but did not participate in the consideration or decision of this case.
Cite as 371 Or 494 (2023) 495
496 Hill v. Johnson

GARRETT, J.

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.

I. BACKGROUND

We take the facts from the record in the trial court 

proceedings. Barrett v. Union Pacific Railroad Co., 361 Or 

115, 117 n 1, 390 P3d 1031 (2017). 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.
Cite as 371 Or 494 (2023) 497

Based on those factual allegations, Hill brought the 

underlying malpractice action alleging that Johnson owed 

him a duty to exercise the ordinary skill and care exhibited 

by Oregon attorneys and that Johnson breached that duty 

both by signing the stipulated supplemental judgment without his knowledge or permission and by failing to take adequate steps to remediate that error. Hill seeks damages for 

the disputed pension proceeds awarded to his former spouse 

in the supplemental judgment and for the fees that Hill 

paid to the attorneys, Fowler and Daniels, whom he hired to 

repair Johnson’s alleged error.

In response to Hill’s complaint, Johnson issued Hill 

discovery requests seeking the production of documents. 

Those requests sought, among other things, the complete 

files of Fowler and Daniels related to their representations 

of Hill in the dissolution matter as well as documents related 

to any other attorney whom Hill had contacted to represent 

him in the dissolution proceeding, regardless of whether 

Hill had retained the contacted attorney.

Hill produced billing records from Fowler and 

Daniels but refused to produce other documents from their 

files, asserting the attorney-client privilege under OEC 

503(2). Johnson disputed Hill’s reliance on the attorneyclient privilege and moved to compel the production of the 

documents that Hill had withheld. Johnson argued to the 

trial court that the attorney-client privilege does not apply 

in legal malpractice cases. Citing OEC 503(4)(c), the breachof-duty exception, Johnson argued that, because Hill’s complaint alleged that Johnson had breached a duty owed to 

Hill, communications between Hill and Fowler and Daniels 

that were relevant to the alleged breach by Johnson should 

be produced.

The trial court agreed with Johnson, ruling that the 

breach-of-duty allegations precluded Hill from relying on 

the attorney-client privilege to withhold documents responsive to Johnson’s request for production.1

 Hill petitioned this 

1 In ordering Hill to produce documents responsive to those requests, however, the trial court expressly relied on the breach-of-duty exception with respect 

to only two of the three requests at issue: the request for repair trial counsel’s file 

(Request for Production (RFP) 10) and the request for repair appellate counsel’s 
498 Hill v. Johnson

court for a writ of mandamus. This court issued an alternative writ of mandamus directing the trial court to either 

vacate its order or show cause why the trial court should 

not do so. The trial court declined to vacate its order. As a 

result, the parties proceeded to argument in this court.

II. ANALYSIS

Johnson argues, as a preliminary matter, that this 

case is outside our mandamus jurisdiction for two reasons. 

First, Johnson notes that the trial court issued a protective 

order prohibiting him from disclosing Hill’s document productions outside the malpractice proceeding, thus limiting 

any harm to Hill that might otherwise result from the production of the documents at issue.

Johnson’s argument misconceives the grounds for 

mandamus jurisdiction when a party asserts that a trial 

court’s order erroneously requires disclosure of a privileged 

communication. Mandamus jurisdiction does not turn on the 

extent of harm, but, rather, on whether the law otherwise 

provides an adequate remedy for that harm. Mandamus 

jurisdiction does not lie when a party has “a plain, speedy 

and adequate remedy in the ordinary course of the law.” 

ORS 34.110. A direct appeal is generally a plain, speedy, 

and adequate remedy. See State ex rel Automotive Emporium 

v. Murchison, 289 Or 265, 269, 611 P2d 1169, reh’g den, 289 

Or 673, 616 P2d 496 (1980) (“Direct appeal is an adequate 

remedy unless the relator would suffer a special loss beyond 

the burden of litigation by being forced to trial.” (Footnote 

file (RFP 45). The trial court did not cite any authority in ordering Hill to produce 

documents related to his contact with prospective repair counsel (RFP 26). 

Nevertheless, Hill had asserted the attorney-client privilege in response to 

all three requests for production in dispute. And Johnson had argued that the 

breach-of-duty exception applied to all documents over which Hill had asserted 

privilege. The trial court did not identify other grounds for rejecting Hill’s assertion of privilege with respect to RFP 26. As a result, it is unclear whether the trial 

court rejected Hill’s assertion of privilege as to RFP 26 based on the breach-ofduty exception or on some other ground.

Our decision addresses only the scope of the breach-of-duty exception. Our 

decision does not address whether Hill has established that the withheld documents are protected by the attorney-client privilege, including whether Hill 

has waived that privilege. To the extent that the trial court did not rely on the 

breach-of-duty exception in rejecting Hill’s assertion of privilege over documents 

responsive to RFP 26, this decision does not affect those reasons. 
Cite as 371 Or 494 (2023) 499

omitted.)). On the other hand, a direct appeal “provides an 

inadequate remedy” when a discovery order erroneously 

requires disclosure of privileged communications because, 

“[o]nce a privileged communication has been disclosed, the 

harm cannot be undone.” Crimson Trace Corp. v. Davis 

Wright Tremaine LLP, 355 Or 476, 485, 326 P3d 1181 (2014) 

(brackets in original; internal quotation marks omitted). An 

appeal fails to remedy the harm that results from the disclosure of privileged communications regardless of whether 

that harm stems from the disclosure to one person—in this 

case, Johnson—or from the disclosure to many people. In 

short, if the trial court’s ruling requiring disclosure was 

erroneous, the fact that the court also entered a protective 

order limiting the extent of that disclosure is not relevant to 

the question of mandamus jurisdiction.

Second, Johnson points out that mandamus “may 

serve only to enforce a known, clear legal right,” State v. 

Moore, 361 Or 205, 212, 390 P3d 1010 (2017) (internal quotation marks omitted), and that, as a result, “the writ of 

mandamus cannot be used as a means of controlling judicial discretion,” Oregon State Hospital v. Butts, 358 Or 49, 

56, 359 P3d 1187 (2015) (internal quotation marks omitted). 

Johnson argues that the trial court exercised its discretion 

in compelling Hill to produce the responsive documents and, 

therefore, the trial court’s order is beyond our mandamus 

jurisdiction.

That argument, too, is incorrect. At issue in this 

case is the trial court’s interpretation of the breach-of-duty 

exception contained in OEC 503(4)(c). Hill contends that the 

exception should be interpreted as applying only to communications between the parties directly involved in the 

alleged breach—in this case, Hill and Johnson. The trial 

court interpreted the exception more broadly when it ruled 

that Hill was required to produce communications between 

himself and attorneys other than Johnson. In deciding how 

to interpret OEC 503(4)(c), the trial court was not exercising 

discretion—it was deciding a question of law. See OR-OSHA 

v. CBI Services, Inc., 356 Or 577, 585, 341 P3d 701 (2014) 

(“Determining the intended meaning of a statute ultimately 

is a question of law.”). As a result, a peremptory writ of 
500 Hill v. Johnson

mandamus in this case, if issued, would be used to enforce a 

legal right—Hill’s right not to produce privileged communications—rather than control judicial discretion.

On the merits, interpreting the breach-of-duty 

exception in OEC 503(4)(c) presents a question of statutory 

interpretation because the rules of evidence are enacted by 

the legislature and codified in statute. Crimson Trace Corp., 

355 Or at 485; ORS 40.225 (the codification of OEC 503). 

We review questions of statutory interpretation for errors 

of law. CBI Services, Inc., 356 Or at 585. And we apply our 

usual method of statutory interpretation, seeking to give 

effect to the intent of the legislature as demonstrated by the 

text in context and any helpful legislative history. State v. 

Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

The text of both the attorney-client privilege and 

the breach-of-duty exception to that privilege is found in 

OEC 503. That rule provides, as relevant here:

“A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition 

of professional legal services to the client *** [b]etween the 

client *** and the client’s lawyer ***.”

OEC 503(2)(a). The breach-of-duty exception relevantly 

provides:

“There is no privilege under this section:

“* * * * *

“As to a communication relevant to an issue of breach of 

duty by the lawyer ** * to the client or by the client to the 

lawyer ** *.”

OEC 503(4)(c).

As an initial matter, Hill does not dispute that his 

allegations against Johnson allege “the breach of a duty” 

that a lawyer owed to his client, for the purposes of OEC 

503(4)(c). The parties, therefore, agree that the breach-ofduty exception may apply to this case. The parties, however, 

dispute the scope of the exception as it applies to this case.
Cite as 371 Or 494 (2023) 501

Hill argues that the breach-of-duty exception applies 

only to communications between the parties directly involved 

in the alleged breach. That is, where a client alleges that a 

former attorney has breached a duty or where an attorney 

alleges that a former client has breached a duty (usually fee 

recovery), the exception ensures that the client cannot claim 

a privilege as to communications with the attorney relevant 

to the dispute. Taking a much broader view, Johnson contends that the only textual limit on the scope of the exception is relevancy: any “communication” that is “relevant” 

to the alleged breach between the client and attorney falls 

within the breach-of-duty exception. By its terms, according 

to Johnson, the exception therefore covers communications 

between the client and other lawyers that are relevant to 

the dispute between the client and the allegedly breaching 

lawyer. Thus, although the only allegedly breached duty in 

this case is one that Johnson owed to Hill, Johnson contends 

that the breach-of-duty exception applies to relevant communications between Hill and the attorneys that he contacted or hired to vacate the supplemental judgment in his 

dissolution matter.

We pause to note the other possible implications of 

Johnson’s argument. Because Johnson contends that the 

only limit to the scope of the exception is relevance, he interprets the scope of the exception broadly, which has the effect 

of narrowing the scope of the attorney-client privilege. Under 

Johnson’s interpretation, the attorney-client privilege would 

cease to protect not only relevant communications between 

Hill and his repair counsel, but also relevant communications that Hill and Johnson have had with the attorneys representing them in the malpractice proceeding.2

 Even more, 

because Johnson himself is an attorney, the broad reading 

of the exception that he advances would risk the disclosure 

of communications that he had with other clients, if those 

communications were relevant to Hill’s allegations.3

2 Johnson argues that the breach-of-duty exception should not apply to his 

communications with his malpractice counsel, but he offers no reason why his 

interpretation would not extend that far.

3 See Glade v. Superior Court, 76 Cal App 3d 738, 747, 143 Cal Rptr 119, 125 

(Cal Ct App 1978) (rejecting same interpretation of California’s equivalent evidence rule, noting that, if the breach-of-duty exception “were construed to extend 

to this situation, a litigant who tendered an issue of breach relative to his own 
502 Hill v. Johnson

Although the text of the exception is not free of ambiguity, it provides support for Hill’s narrower interpretation. 

In particular, the breach-of-duty exception uses the definite 

article “the” in referring to “a communication relevant to 

an issue of breach of duty by the lawyer * ** to the client or 

by the client to the lawyer * * *.” OEC 503(4)(c) (emphases 

added). The definite article “the” “often signifies a narrowing intent, a reference to something specific, either known 

to the reader or listener or uniquely specified.” Hickey v. 

Scott, 370 Or 97, 107, 515 P3d 368 (2022) (internal quotation 

marks omitted). In other words, “the” often precedes a word 

with an identifiable referent—here, an identifiable lawyer 

and identifiable client.

A referent may be identifiable because it was previously introduced. See Rodney Huddleston & Geoffrey K. 

Pullum, The Cambridge Grammar of the English Language, 

ch 5, § 6.1, 370 (2002) (providing an example of a referent 

that is “identifiable by virtue of [its] prior mention”). The 

subsection creating the attorney-client privilege demonstrates that use. The provision starts by referring to “[a] 

client” who holds the privilege and then later refers to “the 

client” who receives professional legal services: “A client has 

a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for 

the purpose of facilitating the rendition of professional legal 

services to the client ** *.” OEC 503(2) (emphases added). 

The client receiving professional legal services is the client 

holding the privilege.

A similar dynamic would seem to inform the meaning of the breach-of-duty exception. The subsection creating 

the attorney-client privilege precedes the subsection creating the breach-of-duty exception. The attorney-client privilege applies to communications between, among other people, “the client *** and the client’s lawyer.” OEC 503(2)(a). 

So, when the breach-of-duty exception says that it applies 

to “a communication relevant to an issue of breach of duty 

by the lawyer ** * to the client or by the client to the lawyer,” OEC 503(4)(c) (emphases added), a natural reading is 

representation by an attorney would be able unilaterally to waive the attorneyclient privilege held by other clients of the same attorney”).
Cite as 371 Or 494 (2023) 503

that it is referring to the lawyer and client who are parties 

to the communication over which the attorney-client privilege would otherwise apply. In that case, the breach-of-duty 

exception would apply only when the parties to the communication at issue are also the parties directly involved in the 

alleged breach.

Our view that the text tends to favor Hill’s interpretation is confirmed by the legislative history, which 

demonstrates that the legislature intended the breach-ofduty exception to apply only to communications between the 

parties directly involved in the alleged breach. The breachof-duty exception was created as part of the 1981 Oregon 

Evidence Code. Or Laws 1981, ch 892, § 32(4)(c). “The principal source of legislative history for the 1981 Oregon Evidence 

Code is the 1981 Conference Committee Commentary.” State 

v. Serrano, 346 Or 311, 324, 210 P3d 892 (2009).

The commentary cites three sources for Oregon’s 

exception. See Legislative Commentary to OEC 503, 

reprinted in Laird C. Kirkpatrick, Oregon Evidence § 503.02, 

305 (5th ed 2007). Two of the sources are relevant to the 

question before us, both supporting Hill’s narrower interpretation.4

 First, the commentary cites McCormick on 

Evidence § 91 (Edward W. Cleary, ed.) (2d ed 1972). That 

treatise states that the breach-of-duty exception might be 

conceived as extending a separate rule: when two or more 

persons jointly consult an attorney, their communications 

with the attorney will be privileged in controversies with 

third parties but not in controversies among themselves. Id.

§ 91, 189-90. In that situation, the parties jointly consulting with an attorney “had obviously no intention of keeping 

these secrets from each other, and hence as between themselves it was not intended to be confidential.” Id. § 91, 190.

According to the treatise, the breach-of-duty exception might represent the same logic: “[H]ere again the notion 

that as between the participants in the conference the 

intention was to disclose and not to withhold the matters 

4 The third source cited by the commentary is New Jersey Evidence Rule 

26(2)(c). Although that rule offers wording for the breach-of-duty exception codified in OEC 503(4)(c), neither the parties nor this court have identified New 

Jersey case law addressing the scope question presented in this case.
504 Hill v. Johnson

communicated offers a plausible reason.” Id. § 91, 191. In 

support, the treatise cites a decision by this court applying that reasoning. See id. § 91, 191 n 95 (citing Minard v. 

Stillman, 31 Or 164, 49 P 976 (1897)). Regardless of whether 

that reasoning is sound, the treatise is evidence of how the 

legislature likely would have viewed the scope of the breachof-duty exception that it adopted. And the scope suggested 

in the treatise would apply the exception to communications between the client and the attorney who are directly 

involved in the alleged breach—because there would be no 

expectation of confidentiality as to communications relevant 

to controversies between themselves—but would not extend 

the exception beyond that.

Second, the commentary cites to California 

Evidence Code § 958, which is substantively the same as 

OEC 503(4)(c). See Cal Evid Code § 958 (1981) (“There is no 

privilege under this article as to a communication relevant 

to an issue of breach, by the lawyer or by the client, of a 

duty arising out of the lawyer-client relationship.”). When 

the Oregon legislature adopts a statute modeled after the 

statute of another jurisdiction, this court has frequently 

consulted that jurisdiction’s case law interpreting the model 

statute as informing the intent of the Oregon legislature. 

State v. Guzman/Heckler, 366 Or 18, 29-30, 455 P3d 485 

(2019). We assume that the Oregon legislature intended to 

adopt “an interpretation of that statute by the highest court 

of that jurisdiction that was rendered in a case decided 

before adoption of the statute by Oregon.” Eklof v. Persson, 

369 Or 531, 541, 508 P3d 468 (2022) (internal quotation 

marks omitted). And, where the highest court of that jurisdiction has not addressed the interpretive question at issue, 

we have, at times, viewed interpretations by lower appellate courts of that jurisdiction as representing the intentions of the Oregon legislature, particularly where there 

is a “consistent pattern” of lower court decisions applying 

that interpretation. Guzman/Heckler, 366 Or at 30; see id.

(“[A]lthough we have accorded greater significance to decisions of the highest court of another jurisdiction, we have 

never altogether discounted decisions of lower appellate 

courts of that jurisdiction, even in the absence of legislative 
Cite as 371 Or 494 (2023) 505

history specifically indicating that our legislature was 

aware of those decisions.”).

Before Oregon adopted the breach-of-duty exception, 

the California Court of Appeal had repeatedly and consistently rejected Johnson’s broad interpretation of that exception in favor of Hill’s narrower interpretation, as limited to 

communications between the parties directly involved in the 

alleged breach. For example, in one case presenting facts 

like this case, a client brought a malpractice claim against 

her former attorney, who had represented her in a marriage 

dissolution proceeding. Miller v. Superior Court, 111 Cal App 

3d 390, 392, 168 Cal Rptr 589, 589 (Cal Ct App 1980). She 

alleged that the former attorney’s negligence resulted in the 

undervaluation of community property stock retained by 

her former husband. Id. The trial court ordered the client to 

produce communications that she had had with other attorneys after the alleged malpractice. Id. The California Court 

of Appeal reversed, holding that the breach-of-duty exception applied only to communications between the attorney 

and client who were directly involved in the alleged breach:

“Clearly, in an attorney breach case [the breach-of-duty] 

exception applies only where the alleged breach is by the 

attorney from whom the information is sought. Where, as 

here, the client has not alleged a breach by the attorney 

involved in the communication in question, the privilege for 

that communication remains intact.”

Id. at 392-93, 168 Cal Rptr at 590; see also Schlumberger 

Ltd. v. Superior Court, 115 Cal App 3d 386, 392-93, 171 Cal 

Rptr 413, 417 (Cal Ct App 1981) (same, relying on Miller).

Similarly, in another case, clients brought fraud 

and malpractice claims against their former attorney 

and, through discovery, sought relevant communications 

between their former attorney and his other clients. Glade v. 

Superior Court, 76 Cal App 3d 738, 742-43, 143 Cal Rptr 119, 

122 (Cal Ct App 1978). The trial court ordered the attorney to produce the responsive client communications. Id. at 

743, 143 Cal Rptr at 122-23. The California Court of Appeal 

reversed, holding that,

“[i]f [the breach-of-duty exception] were construed to extend 

to this situation, a litigant who tendered an issue of breach 
506 Hill v. Johnson

relative to his own representation by an attorney would be 

able unilaterally to waive the attorney-client privilege held 

by other clients of the same attorney. None of the statutory 

exceptions to the attorney-client privilege are designed to 

permit such a result.”

Id. at 747, 143 Cal Rptr at 125. Those California decisions 

support Hill’s narrower interpretation of the breach-of-duty 

exception.

Johnson contends that we need not consult out-ofstate case law to decide this question because, according to 

Johnson, this court has authorized discovery from repair 

counsel in a malpractice proceeding like this, citing Gwin 

v. Lynn, 344 Or 65, 176 P3d 1249 (2008). Our decision in 

Gwin, however, addressed a different question—namely, the 

extent to which a party may obtain discovery from someone 

who is both a fact witness and a testifying expert.

In Gwin, a plaintiff brought a malpractice action 

against her former attorney, intending to call her repair 

counsel as an expert witness to testify to the efficacy of her 

mitigation efforts. Expert witnesses are generally beyond 

the scope of discovery available under ORCP 36 B. Id. at 72. 

On that basis, the trial court denied the defendant’s motion 

to depose the repair counsel in her capacity as a fact witness. Id. at 69-70. We disagreed with the trial court’s ruling, holding that the repair counsel could be deposed about 

her “actions as a factual participant in the effort to mitigate 

damages” but was not required to answer questions “that 

call[ed] for answers about her expert opinions.” Id. at 73.

That issue is irrelevant to this case because Hill has 

not opposed Johnson’s discovery efforts by arguing that his 

repair counsel are beyond the reach of ORCP 36 B, as the 

plaintiff in Gwin had argued. Instead, Hill has argued that 

at least some of the documents responsive to Johnson’s discovery requests are covered by the attorney-client privilege 

in OEC 503. The court in Gwin expressly declined to address 

any issues regarding the scope of the attorney-client privilege. See 344 Or at 72 n 6 (explaining that the mandamus proceeding before the court “does not concern—and we express 

no opinion concerning—the possibility that some of [repair 

counsel]’s testimony may be shielded by other doctrines, such 
Cite as 371 Or 494 (2023) 507

as the work-product doctrine or the lawyer-client privilege”); 

id. at 75 (noting that “issues respecting [the work-product 

doctrine or the lawyer-client privilege] are beyond the scope 

of this mandamus proceeding”). As a result, Gwin provides 

no support for Johnson’s interpretation of the breach-of-duty 

exception to the attorney-client privilege.

Finally, Johnson points out that the Conference 

Committee Commentary to the breach-of-duty exception 

explains that the “exception is required by considerations of 

fairness and policy.” Kirkpatrick, Oregon Evidence § 503.02 

at 305. Johnson contends that Hill’s narrower interpretation 

of the exception is unfair because it would prevent Johnson 

from accessing communications that are potentially relevant to Johnson’s ability to defend himself from Hill’s allegation of malpractice.

It is undeniable that interpreting OEC 503(4)(c) 

to cover communications only between the parties directly 

involved in the alleged breach may prevent the discovery 

of relevant evidence. But that is true with all evidentiary 

privileges. Evidentiary privileges “are designed to limit 

the search for the truth, rather than facilitate its discovery.” Serrano, 346 Or at 325 n 6. We tolerate the loss of 

evidence that results from applying the evidentiary privileges because the privileges “protect certain relationships 

that have been deemed sufficiently important, such as the 

relationship between married persons, doctor and patient, 

clergy and penitent, and attorney and client.” Id. By protecting communications between people within those relationships, the privileges “encourage open communication 

between the persons in the protected relationship, which 

theoretically, in turn, strengthens that relationship and 

encourages participation in such relationships.” Id.; see also

Frease v. Glazer, 330 Or 364, 370, 4 P3d 56 (2000) (explaining that the purpose of the attorney-client privilege “is to 

encourage full and frank communication between attorneys 

and their clients and thereby promote broader public interests in the observance of law and administration of justice” 

(internal quotation marks omitted)).

Historically, the breach-of-duty exception has been 

directed at the unfairness that results from the fact that 
508 Hill v. Johnson

the client holds the privilege. OEC 503(2) (client holds the 

privilege). Without the breach-of-duty exception, a client in 

a dispute with his or her former attorney could waive the 

privilege, if doing so would help the client, or could continue to assert the privilege, if doing so would encumber the 

attorney’s claims or defenses. See Cal Evid Code § 958, Law 

Revision Commission Comments (1965) (“It would be unjust 

to permit a client either to accuse his attorney of a breach 

of duty and to invoke the privilege to prevent the attorney 

from bringing forth evidence in defense of the charge or to 

refuse to pay his attorney’s fee and invoke the privilege to 

defeat the attorney’s claim.”). The breach-of-duty exception 

corrects that unfairness by providing both the client and 

the attorney in the dispute with equal access to communications between them.

In sum, 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 45.5

A peremptory writ of mandamus shall issue.

5 The parties also presented briefing to this court on whether the workproduct doctrine applied to the communications responsive those requests for 

production. That dispute is not part of the mandamus proceeding. That issue 

was not included in Hill’s petition for writ of mandamus. And, in any event, the 

issue would not be appropriate to address as part of this mandamus proceeding, 

because the parties both agree that, even though the trial court’s order compelling production did not address the work-product doctrine, the trial court recognized that some of the documents responsive to those requests may be subject to 

the work-product doctrine and has not yet ruled on any specific assertions of that 

doctrine by Hill.