Attorney-Client Privilege Confidential Communications

News & Analysis as of

Courts Continue to Insist that Common Interest Participants Anticipate Litigation

The common interest doctrine can allow separately represented clients to safely share privileged communications in certain circumstances. Although many lawyers hope that courts will begin extending this helpful protection to...more

An In-House Counsel Learns the Hard Way About a Key Difference Between Common Interest Agreements and Joint Representations: Part...

Common interest agreements and joint representations share many characteristics. Both types of arrangements involve lawyers engaging in protected communications with multiple clients. But they are structurally distinct. In...more

California Supreme Court Concludes Attorney Invoices Privileged During Ongoing Litigation

Attorney invoices may be protected in their entirety by the attorney-client privilege during ongoing litigation. After litigation has concluded, however, those same invoices may be discoverable. So concludes the California...more

High Court Rules That Witness Interview Notes Are Not Covered by Legal Advice Privilege

In December 2016, the English High Court ruled that transcripts, notes and other records of witness interviews prepared by in-house and external counsel in the course of an internal investigation were not covered by either...more

Legal Invoices to Public Agencies in California May Be Exempt from Disclosure

In a case that pitted government transparency against a public agency’s interest in confidential communications with its attorney, the California Supreme Court came down on the side of protecting attorney-client privileged...more

No legal advice privilege over lawyers' notes of interviews with employees

Astex Therapeutics Limited v Astrazeneca AB [2016] EWHC 2759 (Ch), 8 November 2016 - In-house and external lawyers' attendance notes of conversations with employees of a client company who are not directly involved in...more

Court Nixes Privilege Protection for Former Employee Interviews – Is This a Big Deal?: Part I

In a 4-3 vote, the Washington Supreme Court held that an institution's lawyers' communications with former employees did not deserve privilege protection. Newman v. Highland Sch. Dist., No. 90194-5, 2016 Wash. LEXIS 1135...more

Washington Supreme Court Creates Bright-Line Rule - Postemployment Communications Between Former Employees and Corporate Counsel...

The Washington Supreme Court held in a 5-4 vote that attorney-client privilege does not apply to communications between corporate counsel and former corporate employees, even if the communications concern what the employees...more

The Real Value of Lawyers to Compliance

The legal profession is transforming itself, especially in the area of compliance. Lawyers are an invaluable part of a compliance program. They provide important perspective and understanding of risk, they help a company to...more

Exercising attorney-client privilege over in-house communications

Law firm in-house counsel privilege is once again in the news, with New York joining other states, including Georgia, in upholding the attorney-client privilege for in-house counsel communications. ...more

New York Appellate Division Strongly Supports In-House Law Firm Privilege Claim

In Stock v. Schnader Harrison Segal & Lewis, 2016 WL 3556655 (N.Y. App. Div. 2016), the First Judicial Department of the New York Appellate Division upheld, in a case involving a former law firm client seeking to sue the...more

The New York Court of Appeals Rejects Attempted Expansion of the Common Interest Exception to the Attorney Client Privilege

Last month, the New York Court of Appeals issued a decision rejecting the attempted expansion of the common interest exception to the attorney-client privilege to include communications that did not involve pending or...more

Choice of Law Principles in Cross-Border Privilege Disputes: Whose Law Applies?

The Attorney-Client Privilege and Work Product Doctrine in the United States and Abroad - The attorney-client privilege and work product doctrine are important and well-known concepts to nearly every lawyer in the...more

New York and North Carolina Take a Narrow Approach to Common Interest Doctrine

Brief Summary - The "common interest doctrine" generally protects attorney-client communications, even if such communications are disclosed to a third party, as long as the third party shares a common legal interest with...more

‘Sorry, But You Have Nothing in Common’: The New York Court of Appeals’ Recent Rejection of the ‘Common Interest Doctrine’...

The New York Court of Appeals, the state’s highest court, recently rejected an attempt to apply the “common interest doctrine,” an exception to the general rule that communicating privileged information to a third party...more

New York's Highest Court Reverses Appellate Division, Reaffirms Litigation Requirement for Common-Interest Privilege

In a recent decision reversing the Appellate Division of the Supreme Court of New York, First Judicial Department, the New York Court of Appeals definitively held that the common-interest privilege may be used in New York...more

New York’s Highest Court Refuses to Expand the Common Interest Doctrine to Merging Parties

On June 9, 2016, the New York Court of Appeals issued a stark reminder to transactional lawyers: no matter how much “common interest” two parties may have with respect to a transaction, the common interest doctrine may not...more

M&A Update: New York Court of Appeals Rejects Extension of Common Interest Privilege to Merger Talks

On June 9, 2016, a divided New York Court of Appeals in a much-anticipated ruling held that the attorney-client privilege can only be maintained for communications involving third parties in situations where litigation is...more

Court Issues a Surprising Common Interest Doctrine Decision

The common interest doctrine can sometimes allow separately represented clients to avoid the normal waiver implications of disclosing privileged communications to each other. However, courts take widely varying views of the...more

How Do Courts Apply the "Primary Purpose" Privilege Standard?: Part I

In nearly every court, the attorney-client privilege protects intra-corporate communications only if their "primary purpose" was the corporation's need for legal advice. How do courts apply this standard? One might think that...more

Are Consultant’s Employees Functionally Equivalent To Client’s Employees?

As a general matter, the attorney-client privilege is waived by disclosing a communication to a third party. When a corporation hires an investment banker, the corporation’s attorneys will frequently communicate with...more

WIN Wise: Back to basics - Legal professional privilege

The law of England and Wales recognises two main types of legal professional privilege: Legal advice privilege, and Litigation privilege. ...more

Court Rejects “Gotcha” Theory of Waiver Under Public Records Act

A California appellate court has ruled that inadvertent disclosure of documents containing attorney-client communications in response to a Public Records Act request does not result in a waiver of the privilege. Newark...more

Proceed with Caution: Attorney-Client Privilege and Communications with Third-Party Consultants

In our modern economy, businesses regularly use all manner of third-party consultants for many different reasons, including cost, efficiency, and expertise. Less regularly, communications between businesses and consultants...more

California Supreme Court Will Review Appellate Decision Holding That Attorney Bills Are Privileged

In June, I blogged about County of Los Angeles Board of Supervisors v. Superior Court, 235 Cal. App. 4th 1154 (2015). In that case, the California Court of Appeal (Second Appellate District) concluded that legal defense bills...more

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