News & Analysis as of

Attorney-Client Privilege

Trump Administration Begins Process To Rescind “2016 Persuader Rule”

The Trump Administration has begun the process to rescind the “2016 Persuader Rule,” one of the most contentious employment-related regulations issued during the Obama Administration. Earlier this week, the U.S. Department of...more

A victory for attorney-client confidentiality: DOL takes formal steps to rescind controversial persuader regulation

by Thompson Coburn LLP on

In March 2016, the DOL issued a new regulation that greatly expanded the obligations of employers and their attorneys to publicly file sensitive information regarding so-called “persuader activity.” Under the regulation,...more

DOL Takes Significant Step Forward in Rescinding Persuader Rule

by Conn Maciel Carey LLP on

This week the Department of Labor (“DOL”) submitted a proposed rulemaking that would rescind the regulation commonly termed the “Persuader Rule” to the Office of Management and Budget’s Office of Information and Regulatory...more

Court Affirms the Comforting Bevill Backstop

by McGuireWoods LLP on

Lawyers representing corporations should in nearly every circumstance provide an Upjohn warning to avoid accidentally creating attorney-client relationships with company employees. Upjohn v. United States, 449 US 383 (1981)....more

Emails With An Environmental Consultant Are Not Protected by the Attorney-Client Privilege, But May Be Protected Under the...

by Freeborn & Peters LLP on

A federal district court in Indiana recently ruled on whether email communications with environmental contractors hired by an attorney are protected from discovery. In Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No....more

Court Holds Forensic Investigator’s Report is Protected from Disclosure

by Alston & Bird on

Third-party forensic investigations performed at the direction of counsel are part-and-parcel of virtually every data breach. There has been little case law, however, directly addressing the extent to which the...more

California Federal Court Upholds $8 Million Jury Verdict In Former General Counsel’s Whistleblower Lawsuit

Recently, a California federal court denied the defendant–employer’s motion for a new trial, upholding the jury’s $7.96 million verdict finding that the Company terminated its former general counsel for reporting alleged...more

Attorney Billing Records Not Categorically Protected by California Attorney-Client Privilege

by Holland & Knight LLP on

Holland & Knight issued an alert in June 2015, written by Allison Martin Rhodes and Craig S. Weinstein, regarding an earlier California Court of Appeal ruling in this case. This alert provides an update after a December 2016...more

Accountant and Attorney Liability NewsBrief - Summer 2017

by LeClairRyan on

Compliance programs - policies and procedures designed to prevent violations of laws,c rules and regulations – have become a big deal. That’s because government regulators and enforcers closely scrutinize companies that...more

Power to Calculate A Lien: What Court Has Jurisdiction to Determine a Subrogation Lien?

In Murray v. Moody, 797 S.E.2d 365 (N.C. Ct. App. 2017), a Wilson County Superior Court entered an “Amended Final Judgment” expressly provided judgment for a lien on damages that a jury awarded in a civil suit in favor of the...more

Delaware Bankruptcy Court Denies Creditors’ Committee Access To Privileged Documents

by McCarter & English, LLP on

In a May 8, 2017 ruling, the Delaware Bankruptcy Court denied the official committee of unsecured creditors from accessing certain documents withheld from production based on the attorney-client privilege. Despite the purpose...more

Privilege Implications of an Explicit or Implicit "Advice of Counsel" Defense: Part II

by McGuireWoods LLP on

Last week's Privilege Point described the normal broad subject matter waiver triggered by litigants' explicit defensive reliance on legal advice. Litigants' implicit reliance can have the same effect. In Maar v. Beall's,...more

ABA Issues New Guidance on Safeguarding Electronic Communications

by Holland & Knight LLP on

In a significant opinion published on May 11, 2017, the American Bar Association's (ABA) Standing Committee on Ethics and Professional Responsibility provided additional guidance on a lawyer's obligations to protect client...more

Check Your Privilege: English Court Rules Internal Investigation Materials Cannot be Withheld from Prosecutor

by Latham & Watkins LLP on

“Privilege is a fundamental human right guaranteed by the common law, and a principle which is central to the administration of justice. Once a document is subject to privilege, the privilege is absolute: it cannot be...more

From Greyball to Snowball: Uber’s Latest Travails, and How Multiple Investigations of Misconduct May Imperil the Attorney-Client...

It emerged on May 5 that the Department of Justice opened an investigation into Uber’s use of software called “Greyball” that concealed the ride-sharing company’s operations from regulators in cities and countries that did...more

5th Circuit Discusses Privilege Logs In Connection With EEOC Investigation

Company records and communications are typically subject to disclosure in government investigations. They may be protected from disclosure if they are protected by the attorney client privilege or attorney-work product...more

Court Holds that Attorney-Client Privilege Extends to Environmental Consultants Hired by an Attorney on Behalf of a Client, but...

by Miller Starr Regalia on

The attorney-client privilege protects communications made in confidence by a client to its attorney for the purpose of obtaining legal advice. The privilege can extent to consultants and experts hired by the attorney on...more

CAS Legal Mailbag Question of the Week – May, 2017 #2

by Shipman & Goodwin LLP on

Dear Legal Mailbag: When I signed up to be an administrator, I never realized what expansive rights nosy people have under the Freedom of Information Act. I understand that the public has the right to know certain things,...more

Privilege, Not a Right: US Court of Appeals Sets Record Straight on Privilege Logs

Does a conversation with an in-house attorney always carry with it the protection of the attorney-client privilege? The answer is a resounding “no,” according to a recent federal appellate decision covering a range of issues...more

Florida’s Fiduciary Lawyer-Client Privilege is on the Books, But is it Good Law?

In 2011, Florida’s legislature enacted section 90.5021, Fla. Stat., which provides for application of the lawyer-client privilege – even when the client is a fiduciary....more

Privilege Implications of an Explicit or Implicit "Advice of Counsel" Defense: Part I

by McGuireWoods LLP on

All lawyers know that pleading an "advice of counsel" affirmative defense waives privilege protection. But lawyers must remember such waivers' breadth. In United States v. Trotter, defendant Trotter announced his intent...more

Client Sends Privileged Email From iPhone That Triggers Inadvertent Production Rule

by Buchalter on

Eight years ago the Second District Court of Appeal issued a decision establishing an attorney’s ethical duties upon receipt in discovery from opposing counsel of an inadvertently produced, privileged communication. State...more

Federal Court Upholds Attorney-Client Privilege for Mutual Fund Independent Trustees

by Ropes & Gray LLP on

In a decision affirming the importance of the attorney-client privilege in the mutual fund board setting, an Illinois federal court ruled on April 25, 2017 that fund shareholders were not entitled to access privileged...more

Federal Court Denies “Fiduciary Exception” Challenge in Connection with Section 36(b) Excessive Fee Lawsuit

by Dechert LLP on

The U.S. District Court for the Northern District of Illinois denied a motion to compel production of attorney-client privileged documents on April 25, 2017, in connection with the Section 36(b) lawsuit Chill v. Calamos...more

Lawyers as “Gate Keepers” – The European Parliament Examines the Roles of Attorneys in Tax Evasion and Laundering Schemes

by Ballard Spahr LLP on

Starting on April 27, and finishing on May 2, the European Parliament (EP)’s Committee of Inquiry into Money Laundering, Tax Avoidance and Tax Evasion (PANA) is holding two meetings to present several related studies which...more

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