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, may waive the attorney-client privilege with respect to communications made by former officers and directors. Displaced managers may not assert the privilege over the wishes of current managers, even as to statements that the former might have made to counsel concerning matters within the scope of their corporate duties. [Emphasis added.]
While the foregoing may not seem too surprising to some, what if I told you that the new owners of a business can waive the privilege with respect to communications that the former owners had with company counsel solely to use those communications as evidence against the former owners in litigation? Well, that is exactly what the Delaware Court of Chancery recently allowed to happen in Great Hill Equity Partners v. Sig Growth Equity Fund, LLP.… Keep reading
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 that the subsequent communications involving those outside counsel will automatically be privileged had better read the recent decision by Magistrate Judge Kenneth P. Neiman (District of Massachusetts) in Koss v. Palmer Water Department.… Keep reading
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 strong dissent, address several key aspects of the privilege that in-house counsel are well advised to keep in mind.… Keep reading
On more than one occasion, an in-house counsel has been summoned to a strategy meeting about a potential or ongoing dispute, and when he arrives, he finds an outside accountant already seated in the conference room ready to participate in the meeting. At this point, the in-house counsel’s gut reaction usually is to ban the accountant from the meeting so that the attorney-client privilege will not be destroyed. While excluding the accountant from the meeting may ultimately make sense, making that judgment without some serious reflection could deprive the client of insights that may come with little or no risk and/or may be worth the risk of waiving the privilege.… Keep reading
The attorney-client privilege remains a topic on the mind of many in-house counsel. I’ve written about it several times before, and on September 12 at 1:00 P.M., I am presenting a webinar with a live Q&A session on the attorney-client privilege with Commercial Law WebAdvisor. Among other topics are the following:
- When the presence of experts or other non-attorneys will or will not destroy the privilege
- How the attorney-client privilege applies when the client is a corporation or other organization
- How the privilege applies when the attorney is in-house counsel
- What happens to the privilege when the client dies, ceases to exist or is sold
- What risks a party may run by invoking the attorney-client privilege
If you have any interest in attending, please click here for more information about the webinar and pricing.… Keep reading
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, the communication that takes place will be privileged.
Notwithstanding the fact that the attorney-client privilege applies to communications between a lawyer and a client, many people still believe that communications amongst employees are protectable even if no attorney is present, as long as they are discussing an ongoing or potential litigation. That is a misguided notion, and looking at the facts of a 4th Circuit case, US v. Tedder, reveals how dangerous having such a misconception can be.… Keep reading
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.
… Keep reading
I recently had the pleasure of giving a presentation to the Northeast Chapter of the Association of Corporate Counsel on issues affecting in-house counsel in connection with the attorney-client privilege. Click here to listen to a webcast of that presentation. (You will be prompted to sign in with your ACC log-in, but if you don’t have one, you can still access the webcast after clicking on “next step” on the check out page.)
In connection with that presentation, I developed the following list of Myths vs. Reality:
… Keep reading
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 a lawyer and an independant contractor or consultant hired by the true client can be protected by the attorney client privilege.
Starting way back in 1994, the 8th Circuit, in In re Bieter Company, held that the attorney client privilege could apply to communications between counsel and independent contractors of a client if “it [would be] inappropriate to distinguish between those on the client’s payroll and those who are instead, and for whatever reason, employed as independent contractors.”
While the Bieter case did not set forth a specific test to analyze under what circumstances a non-employees’ communications with counsel might remain privileged, a number of cases since have generally agreed that the key issue will be whether the individual is the “functional equivalent” of an employee. So what does it mean to be the functional equivalent of an employee? … Keep reading
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 of obtaining legal advice are privileged. Thus, even conversations between a CEO and his or her General Counsel about the most sensitive and confidential aspects of their business are subject to disclosure unless they are for the purpose of obtaining legal advice.… Keep reading