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Attorney-Client privilege In M&A Transactions

The title of this recent law review article frames the problem well, At the Whim of Your Adversaries: California’s Hazards in Sell-Side Representation and Waiver of Attorney-Client Privilege, 54 Santa Clara L. Rev. 651...more

9/8/2014 - Attorney-Client Privilege Proposed Amendments

Why Keeping Corporate Lawyers Quiet Is Good For Us All

In a recent post in The New York Times DealBook, Berkeley Law School Professor Steven Davidoff Solomon argues that keeping corporate lawyers silent “can shelter wrongdoing”. I completely agree that the attorney-client...more

8/28/2014 - Attorney-Client Privilege Corporate Counsel Corporate Governance Ethics Information Management

Insurer Claims Attorney-Client Privilege Of Third Parties Prohibits Disclosure To Its Own Attorneys

At first, this case seems somewhat pedestrian – a lawyer sues her erstwhile law firm for employment discrimination. But then things get complicated. It turns out that the lawyer was employed by a law firm that was employed...more

8/14/2014 - Attorney-Client Privilege Discrimination Third-Party Relationships Third-Party Risk

Former Executive Has No Right To Possess A-C Privileged Documents

Suppose that a corporation terminates its president and chief executive officer who then sues for breach of his employment contract. Does the former executive officer have a right to access and use materials subject to the...more

8/8/2014 - Attorney-Client Privilege Breach of Contract C-Suite Executives Employer Liability Issues Former Employee Hiring & Firing

Delaware Likes Garner/California Not So Much

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

7/31/2014 - Attorney-Client Privilege Breach of Duty Fiduciary Duty Garner Shareholders Wal-Mart

Federal Court Applies California Privilege Law To Delaware Corporation

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

6/3/2014 - Attorney-Client Privilege Jurisdiction

This Interest May Be Common, But It’s Still Privileged

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

3/13/2014 - Attorney-Client Privilege Confidential Communications Corporate Counsel Evidence

SEC Acknowledges Ethical Obligations May Preclude Voluntary Reporting Out By Attorneys

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

2/21/2014 - Attorney-Client Privilege Confidential Information Crime-Fraud Exception Reporting Requirements SEC

More On Asset Sales And The Attorney-Client Privilege

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

12/2/2013 - Attorney-Client Privilege Sale of Assets

Is The Attorney-Client Privilege An Asset?

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

11/22/2013 - Attorney-Client Privilege Business Assets Corporate Counsel Transfer of Assets

Protecting Client Confidences “At Every Peril”

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

10/10/2013 - Attorney-Client Privilege Contempt Legal Ethics Professional Liability

Contractual Provisions Disclaiming Attorney-Client Relationship Do Not Let Lawyer Off The Hook

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

8/8/2013 - Attorney-Client Privilege Disclaimers Established Business Relationship Liability

Kalisman v. Friedman – A California Analysis

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

7/10/2013 - Attorney-Client Privilege Board of Directors Corporate Governance Corporate Officers Directors Duty of Loyalty Incorporation Inspections

Secrets Must Be Kept Even When Not Privileged

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

6/19/2013 - Attorney-Client Privilege Confidential Information SEC Whistleblower Awards

No Directors, No Officers, No Employees And No Agents – Now What?

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

5/3/2013 - Agents Attorney-Client Privilege Board of Directors Discovery Officers Waivers

How Much Would You Charge For A Rule 144 Opinion?

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

3/8/2013 - Attorney-Client Privilege Conflicts of Interest Rule 144 Opinion SEC Stocks

Does A Lawyer Who Files A Derivative Action Have An Attorney-Client Relationship With The Corporation?

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

12/20/2012 - Attorney-Client Privilege Board of Directors Derivative Suit Shareholder Litigation

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