In 1970, Richard Nixon was president, the 26th Amendment was still not part of the Constitution, and the Fifth Circuit Court of Appeals issued its opinion in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970). In that...more
Lawyers often speak of the attorney-client privilege in the singular as if there is only one privilege. Given the multiplicity of fora in which actions may be brought, it is best to think in the plural. There are many...more
Section 954 of the California Evidence Code establishes a privilege “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer”. A “confidential communication...more
In 2003, the Securities and Exchange Commission adopted rules that purportedly immunized attorneys who, subject to specific conditions, reveal confidential information to the SEC. 17 C.F.R. § 205.3(d)(2) Technically, the...more
Last week, I dipped a toe into the difficult topic of what happens to the attorney-client privilege in merger and acquisition transactions. In that post, I framed a definitional question – is the attorney-client privilege an...more
Suppose that a corporation decides to sell all of its assets. Do all assets include the attorney-client privilege? In considering this question, I think it is useful to distinguish between the documents or other media that...more
California expects a lot from attorneys when it comes to client confidences and the attorney-client privilege.
- Evidence Code Section 955 imposes an affirmative duty on every lawyer who received or made a...more
Suppose a contract includes the following provisions:
“Founder is relying solely on her legal counsel and not on any statements or representations of the Company’s legal counsel for legal advice with respect to this...more
A few months ago, Vice Chancellor J. Travis Laster issued an interesting decision involving director inspection rights and the attorney-client privilege. Kalisman v. Friedman, 2013 Del. Ch. LEXIS 100 (April 17, 2013). ...more
Yesterday, I discussed whether an SEC attorney might commit an ethical violation by encouraging an attorney to disclose her client’s confidences. That discussion was prompted by a recent posting by Lawrence A. West...more
Occasionally, a corporation may find itself with no directors and no management. Yet, the corporation does not cease to exist.
One might wonder what use can there be in a corporation deprived of head and limb. In...more
Yesterday, the Securities and Exchange Commission announced that it had filed a civil complaint against a California lawyer for “churning out baseless legal opinion letters for penny stocks through his website without...more
Because the California Corporations Code requires that the business and affairs of a corporation be managed by or under the direction of its board of directors, any decision of whether a corporation should bring suit on...more