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The In-House Advisor Published by Shepard Davidson & Renee Inomata

Category Archives: Attorney-Client Privilege

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Confidential Communications With In-House Counsel Are Not Always Privileged

Posted in Attorney-Client Privilege

Next to a person’s Fifth Amendment right to remain silent, the attorney-client privilege is probably the most well recognized legal doctrine out there. Nevertheless, there are many nuances surrounding the privilege about which even seasoned lawyers are not very familiar. One of these deals with the fact that not all private communication between an attorney and… Continue Reading

Corporate Individual Creating a Privileged Communication May Not Control Waiving It

Posted in Attorney-Client Privilege, Confidentiality

While companies, like people, are entitled to protect privileged communications with their counsel, companies only can act through individuals. So what happens when the former CEO wants to disclose a privileged communication he had with his company’s corporate counsel? As SEC v. Present highlights, if the company does not want that communication disclosed, the former… Continue Reading

Keeping Communications With Other Parties Confidential Through the “Community of Interest Privilege”

Posted in Attorney-Client Privilege, Pre-Litigation Considerations

One of my law school classmates asked me several month ago about the merits of entering into a joint defense agreement with another party to protect communications he had with that party’s counsel in connection with a potential dispute with a third company. He was concerned that entering into such a joint defense agreement might… Continue Reading

The Attorney-Client Privilege and Individuals Who Are the “Functional Equivalent” of Employees

Posted in Attorney-Client Privilege

Communications between attorneys and clients that are not private, and/or communications between attorneys and third parties, cannot be protected from disclosure by the attorney-client privilege.  When the client is an individual, it generally is easy to discern if a communication is private, and it usually is obvious if an attorney is communicating with a third… Continue Reading

Intra-Company Disputes: Implications for the Attorney-Client Privilege and Fiduciary Duties

Posted in Attorney-Client Privilege, Fiduciary Duties

In the course of its decision in Chambers v. Gold Medal Bakery, Inc., the Supreme Judicial Court of Massachusetts highlights a number of important rules related to the attorney-client privilege, as well as various rights and duties of officers and directors in closely held corporations.  While it is important to understand the detailed facts of… Continue Reading

Beware of What Happens to the Attorney-Client Privilege When Your Company is Sold

Posted in Attorney-Client Privilege, Jurisdiction, Venue and Choice of Law

In Commodity Futures Trading Comm’n v. Weintraub, the United States Supreme Court noted that: [W]hen control of a corporation passes to new management, the authority to assert and waive the corporation’s attorney-client privilege passes as well. New managers installed as a result of a takeover, merger, loss of confidence by shareholders, or simply normal succession,… Continue Reading

Internal Investigations Can Lead to a Waiver of the Attorney-Client Privilege

Posted in Attorney-Client Privilege, Harassment, Pre-Litigation Considerations

As I have discussed in other blog posts, communications with in-house counsel that are not for the purpose of obtaining legal advice are not privileged. But what happens when outside counsel is hired to investigate a claim of harassment in the workplace and a second outside counsel is hired to provide legal advice?  Anyone who thinks… Continue Reading

Recent New Jersey Case Highlights Several Aspects of the Corporate Attorney-Client Privilege

Posted in Attorney-Client Privilege

In Hedden v. Kean University, the New Jersey Appellate Division ruled that an email sent by the University’s women’s basketball coach to the school’s in-house counsel was privileged even though a copy also was sent to the University’s Executive Vice President of Operations and later disclosed to the NCAA. The opinion, as well as the… Continue Reading

Limiting Intra-Company Conversations About Disputes is Critical

Posted in Attorney-Client Privilege, Pre-Litigation Considerations

When an employee talks to in-house or outside counsel for the purpose of obtaining legal advice for the company, that communication will be privileged and can be protected from disclosure.  Likewise, when in-house counsel is meeting with several employees at the same time for the purpose of gathering information to be used for legal advice,… Continue Reading

Top 5 Myths Related to the Attorney-Client Privilege

Posted in Attorney-Client Privilege

By popular demand, here again are what I consider to be the top 5 myths related to the attorney-client privilege.  I recently spoke at a presentation to the Northeast Chapter of the Association of Corporate Counsel about the ways these myths (and the concomitant realities) can impact how in-house counsel interact with their business clients.  

Communications Between In-House Counsel and Independent Contractors Can Be Protected By the Attorney Client Privilege

Posted in Attorney-Client Privilege

In my March 29th post on the attorney client privilege, I specifically noted that communications between in-house (or outside) counsel and employees or former employees could be privileged if the purpose of the communication was to enable the attorney to provide legal advice.  As I just learned the other day, however, under some circumstances, communications between… Continue Reading

In-House Counsel and the Attorney-Client Privilege

Posted in Attorney-Client Privilege, Privacy & Data Security

Because the role of most in-house counsel goes well beyond that of providing legal advice, whether communications with in-house counsel are privileged is a much more nuanced issue than it is with respect to communications with outside counsel. General Principles Applicable to all Claims of the Privilege 1.  Not all communications with attorneys are privileged; only communications for the purpose… Continue Reading