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

Tag Archives: attorney-client privilege

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

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

More on the Attorney-Client Privilege

Posted in Miscellaneous

If you read my earlier blog posting, “In-House Counsel and the Attorney-Client Privilege,” and wanted additional insight on the topic, please join me for the webinar “Silence is Golden: The Attorney-Client Privilege” on Friday, June 22 from 12:00 pm – 1:00 pm (EST), sponsored by the Global Outsourcing Association of Lawyers.  I will address when… Continue Reading