43 Trial Lawyer • Winter 2024 See Sheets 44 resented by Jesse Buss. Chuck Robinowitz filed the amicus brief for OTLA. Following an automobile collision, the plaintiff brought a personal injury suit against the defendant, and the case went into mandatory arbitration pursuant to ORS 36.400. The plaintiff prevailed, and the arbitrator awarded the plaintiff $15,000 in attorney fees under ORS 20.080. The plaintiff, who had requested $25,000 in fees, excepted to the arbitration award on that issue. The court allowed the full $25,000 and entered a general judgment to that effect, which the defendant paid, and a satisfaction of judgment was entered. The plaintiff then filed a supplemental fee petition requesting fees on fees, for work performed after the initial fee petition was filed. The trial court denied the fees as barred by entry and satisfaction of the general judgment, as well as by claim preclusion. The Court of Appeals reversed. First, judgment were reversed and the case remanded to trial. The breach-of-duty exception to the attorney-client privilege applies only to communications between the parties directly involved in the alleged breach. Hill v. Johnson, 371 Or 494 (2023); Garrett, J. The plaintiff was represented by Ryan Harris. The plaintiff, Hill, brought a legal malpractice action against his former attorney, Johnson, who had represented Hill in a marriage dissolution proceeding. Hill alleged that Johnson had committed malpractice during his representation and that, as a result, Hill had to hire another attorney to correct Johnson’s alleged error. Johnson issued Hill discovery requests seeking the production of documents, including communications with his new counsel. Hill objected, asserting the attorney-client privilege over those communications. The trial court ordered Hill to produce the responsive communications, concluding that they fell within the breach-of-duty exception to the attorneyclient privilege. That exception applies to communications “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). Hill challenged that ruling by filing a petition for a writ of mandamus in the Supreme Court. On mandamus review, the Supreme Court held that the breach-of-duty 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). DECISIONS OF THE OREGON COURT OF APPEALS All felony convictions admissible under OEC 609(1) must be admitted; but-for causation instruction is applicable to child sex abuse case. Doe v. First Christian Church of The Dalles, 328 Or App 283 (2023); Ortega, J. The plaintiff was represented by Travis Eiva, Stephen Crew and Peter Janci. The plaintiff sued a church, alleging it had allowed her to be abused as a child by a youth group leader. At trial, the plaintiff sought to admit evidence that the youth group leader had five felony convictions for sex crimes against minors in five different cases. The trial court allowed some of the convictions to come in but not the others, deeming them cumulative. The plaintiff also asked the trial court to instruct the jury on substantial factor causation instead of but-for causation. The trial court gave the but-for instruction. The jury found that the youth group leader was an agent of the church but that none of his acts that were within the scope of that agency caused damage to the plaintiff. The jury further found that the church was negligent in allowing the youth group leader to serve in that role but that the church’s negligence did not cause damage to the plaintiff. The plaintiff appealed but the Court of Appeals affirmed. First, the court held that it was error to not admit all of the convictions under OEC 609(1) because, while a court has some discretion to limit the extent of an inquiry into the facts underlying a conviction, a court cannot wholly exclude evidence of a conviction admissible under that rule. Second, the Court of Appeals held that the error was harmless because on the facts of this case the additional convictions would not likely have affected the verdict. Finally, the court held, following Haas v. Estate of Carter, 370 Or 742 (2023), that giving only the but-for causation instruction was correct. Fees on fees may be recovered even when an earlier judgment for earlier-incurred fees has been fully satisfied. Mayes v. Ramos, 327 Or App 640 (2023); Tookey, J. The plaintiff was rep-
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