Shepard Davidson

the in-house advisor

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 client are privileged – even when the communications involve the most confidential and sensitive information.

In order to understand why and how to handle situations where an attorney-client communication may not be privileged, let’s first look at the basics: the attorney-client privilege is a rule of law that protects from disclosure private communications between an attorney and client that are for the purpose of giving or receiving legal advice. As such, communications with an attorney that seek business advice are not privileged. Further, because so many in-house attorneys routinely provide both business and legal advice, it is critically important that they educate their business colleagues about this, or problems can arise.

Take this example, which really happened to one of my in-house clients a few years ago. As a meeting amongst a group of business executives was about to begin, the CEO

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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 CEO may be barred from making such a disclosure.… Keep reading

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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 party.  When the client is a corporation or some other entity, however, it can be much less clear as to whether a particular person will be deemed to be the client or a third party.  One scenario where this issue routinely arises is when company counsel communicates with an individual who is an independent contractor or some other person working closely with the company, but who is not an employee.… Keep reading

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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 Chambers in order to gain a full appreciation of its multitude of specific rulings, the overarching story is a familiar one that has played itself out over and over again (with the most notorious example being Demoulas v. Demoulas).… Keep reading

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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

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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

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Recent New Jersey Case Highlights Several Aspects of the Corporate 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 strong dissent, address several key aspects of the privilege that in-house counsel are well advised to keep in mind.… Keep reading

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How an Outsider’s Presence Affects the Attorney-Client Privilege


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

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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

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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

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