News & Analysis as of

Confidential Communications

Employers May Wish to Update Electronic Access Policies to Assure Access to Employee's Emails with Counsel - New York Appellate...

by Holland & Knight LLP on

In most states, it is fairly clear that attorney-client privilege does not apply to communications between an employee and the employee's personal lawyer if the communications are made using the employer's email system and if...more

One Year After Ambac: Sharing Information Among Deal Parties

by WilmerHale on

On June 9, 2016, the New York Court of Appeals issued its decision in Ambac Assurance Corp. v. Countrywide Home Loans Inc. and held that the common interest doctrine protects only communications among deal parties that are...more

First Department Finds Work-Product Protection Not Waived by Storage of Documents on Company Laptop

On June 6, 2017, the First Department had an opportunity to apply—and reaffirm—last month’s decision in Peerenboom v. Marvel Entm’t, LLC, where the Court held that use of a company email system for personal purposes “does...more

Attorney-Client Privilege and Corporate E-Mail: Navigating the Morass of Personal Communications in Investigations

by King & Spalding on

Experienced practitioners know that the purpose of the attorney-client privilege is to protect the confidentiality of client communications. Thus, as company policies that allow monitoring of emails or provide third party...more

Encrypting Emails: ABA Issues New Guidance Addressing Security Concerns over Attorney-Client Communications

In May, the American Bar Association (“ABA”) released a Formal Opinion 477, providing guidance on attorney use of emails in communication with clients. In doing so, the ABA has promulgated a new standard when considering the...more

California Court of Appeal Clarifies the Limits of the Attorney-Client Privilege for Communications with an Attorney and a Third...

by Payne & Fears on

A recent decision by the California Court of Appeal in Behunin v. Superior Court, 9 Cal. App. 5th 833 (2017), is a reminder that a party’s communications with an attorney and a third party consultant must be reasonably...more

[Webinar] Confidentiality and Privilege: Not One and the Same - June 14th, 12:00 pm CT

by Thompson Coburn LLP on

The lawyer’s duty of confidentiality and the attorney client privilege share a common basis, and both address information a lawyer must protect. However, they are not a single concept, and lawyers often confuse the two. ...more

English Court Questions the Application of Litigation Privilege in Criminal Investigations

On 8 May 2017, the English High Court of Justice handed down judgment in The Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation Ltd,1 which could significantly limit the application of litigation...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

Attorney Risks Disqualification If After Receiving Presumptively Privileged Communication Fails to Notify Privilege Holder and...

In McDermott Will & Emery LLP v. Superior Court (4/18/2017 – No. G053623), the Fourth Appellate District, in a 2-1 decision, considered two distinct issues: 1. Whether the attorney-client privilege for a confidential e-mail...more

Can the Attorney-Client Privilege Protect Corporate Executives' Notes of Their Conversations with a Lawyer?

by McGuireWoods LLP on

The attorney-client privilege protects communications between lawyers and their clients, primarily motivated by the latter's need for legal advice. Some corporations' adversaries challenge privilege protection for withheld...more

Sharing Legal Communications With PR Firm Raises Privilege Issues for Hospital

by Pepper Hamilton LLP on

A recent case in Pennsylvania reminds companies to think carefully about sharing their attorney-client communications with third parties, such as public relations firms. On March 13, a unanimous three-judge panel of the...more

2016 Guidance from the North Carolina Court of Appeals on Attorney-Client Privilege Issues

by Ward and Smith, P.A. on

In civil litigation, parties frequently communicate with consultants, tax advisors, friends, family, and others concerning the subject matter of the litigation, and such communications raise issues regarding the possible...more

A Common Interest Agreement May Not Be Worth the Paper It’s Written On

by Wilson Elser on

It is a very common practice for counsel to co-defendants or co-plaintiffs to enter into agreements that shield their communications. The agreements are expressions of intent that the communications will be protected by the...more

Confidential Communications With In-House Counsel Are Not Always Privileged

by Burns & Levinson LLP on

Next to a person’s Fifth Amendment right to remain silent, the attorney-client privilege is probably the most well recognized legal doctrine out there. Nevertheless, there are many nuances surrounding the privilege about...more

Courts Address Privilege and Work Product Implications of Defendants' and Plaintiffs' Large "Town Hall" Meetings

by McGuireWoods LLP on

The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work...more

Protecting privilege during Australian internal investigations: is lawyer work product at risk?

by DLA Piper on

In the long running RBS Rights Issue litigation, the English High Court has recently ruled that notes of interviews of bank employees, prepared by the bank's in-house lawyers who conducted the interviews as part of an...more

Department of Justice Fraud Section Provides Guidance on Evaluating Corporate Compliance Programs

by Jones Day on

On February 8, 2017, the United States Department of Justice ("DOJ") Fraud Section published a blueprint for assessing corporate compliance efforts, titled "Evaluation of Corporate Compliance Programs" ("Guidance"). It...more

Evidence Law Litigation Update - February 2017

New York Court of Appeals Holds That the Common Interest Doctrine Applies Only to Litigation Matters. This year, in Ambac Assurance Corp. v. Countrywide Home Loans, Inc., No. 80, 2016 N.Y. Lexis 1649 (N.Y. June 9, 2016), New...more

New Guidance from the DOJ on Your Compliance Program

by NAVEX Global on

The U.S. Department of Justice (DOJ), Criminal Division, Fraud Section, recently released new guidance associated with its Guide to the U.S. Foreign Corrupt Practices Act. The guidance, entitled Evaluation of Corporate...more

Does the Shelton Standard Apply to In-House Lawyers?

by McGuireWoods LLP on

Nearly every court protects a litigant's lawyer from depositions or other discovery under what is called the Shelton standard ( Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986)) or under similarly restrictive...more

Privilege Claims Validated in Counterfeit Detection Dispute

In a recent decision, Magistrate Judge Kelley addressed the legitimacy of withholding third party communications under the common interest doctrine. The case involved plaintiff Crane Security Technologies, Inc. (“Crane”) –...more

Courts Continue to Insist that Common Interest Participants Anticipate Litigation

by McGuireWoods LLP on

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...

by McGuireWoods LLP on

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

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