The corporate bankruptcy process, where the roles of various stakeholders and parties in interest can change drastically throughout the case, presents unique challenges for the application of the attorney-client privilege. One of the biggest hazards for a corporation in bankruptcy is the potential for a court to find that the attorney-client privilege has been waived, and that communications between the corporate debtor and its counsel must be produced. When privilege issues are not carefully identified and evaluated before bankruptcy, they can resurface during bankruptcy at the most inopportune time.

This Article examines the recurring privilege issues that confront corporate bankruptcy practitioners and trustees alike. Part I provides a brief overview of the attorney-client privilege, discussing its application in the corporate context. Part II examines who controls and directs the attorney-client privilege during a corporation’s bankruptcy. Finally, Part III examines recurring attorney-client privilege issues that arise in corporate bankruptcy.

Originally presented at the 36th Annual Middle District Bankruptcy Seminar - Aberdeen, NC - April 24th & 25th, 2015.