Many if not most clients and even some ill-informed lawyers think they can “make” something privileged through some logistical step — such as marking it as “privileged,” copying a lawyer, inviting a lawyer to a meeting, etc....more
In some cases involving voluminous or complicated privilege issues, courts rely on special masters to make the privilege calls. Courts often call on well-respected private lawyers, or sometimes academics (which not...more
As anyone faced with discovery requests knows, one of the most important parts of producing documents is determining what documents are subject to attorney-client privilege or work product doctrine and must therefore be...more
In many cases, clients tend to place their trust, and often their livelihood, in the hands of their attorney. This expectation can be easily traced back to the attorney-client privilege, one of the oldest common-law...more
Unlike an intentional or unintentional express waiver involving actual disclosure of a privileged communication, a litigant can trigger an implied waiver by relying on the fact of such a privileged communication rather than...more
The attorney-client privilege is the oldest of the common law privileges for withholding confidential communications recognized in American jurisprudence. It allows a person to seek legal advice and representation without...more
Attorney-client privilege protection depends on a communication’s content — which must be primarily motivated by the client’s request for legal advice....more
I’m not a cyber expert, but as a compliance professional with accountability for internal investigations of employee and third-party misconduct I’ve had a front row seat to the evolution of risk that has mirrored the mass...more
The new flexible work environment created in the post-pandemic years poses unique challenges for companies and individuals who work outside a traditional office. The SEC knows this and is actively enforcing the securities...more
In early 2023, the National Labor Relations Board’s (NLRB or “Board”) decision in McLaren Macomb, 372 NLRB 58, revoked employers’ ability to require their employees to keep the terms of severance packages confidential and to...more
The New York Court of Appeals recently clarified and reinforced the attorney-client privilege, explaining that certain internal training materials reflecting legal analysis of statutory, regulatory, and decisional law...more
The last two Privilege Points have addressed some federal courts’ inexplicable application in diversity cases of their host states’ substantive privilege law rather than their host states’ choice of law rules. Some states...more
With its origins in the 16th century, the attorney-client privilege is one of the oldest doctrines in our common law tradition. Even so, new issues do arise, like in the North Carolina Business Court case Hosie v. 8 Rivers...more
An organization that has suffered a data breach likely does not want to have to disclose potentially embarrassing or harmful information, especially in a lawsuit resulting from the breach. Simply involving an attorney in...more
A bedrock feature of the attorney-client relationship is the privilege protecting legal-advice communications from prying eyes. Confidential communications between a client and her lawyer are protected to a degree not found...more
A BP executive's husband pleaded guilty to securities fraud for buying and selling stock of BP's merger target. He knew of the upcoming transaction because he and his wife worked from home approximately 20 feet from each...more
Last week’s Privilege Point described the illogical but scary Vioxx doctrine, which some courts apply to deny privilege protection ab initio to intra-corporate communications simultaneously seeking advice both from lawyers...more
Lawyers representing corporations all recognize the privilege waiver risk of disclosure to outsiders. But there are two huge risks to privilege protection even for internal corporate communications. Pointing to the “primary...more
Corporations risk waiving their fragile privilege protection by sharing protected communications with even the friendliest outsiders — such as their retained public relations consultants, etc. They must disclose some...more
Generally speaking, attorney-client privilege protects against the disclosure of confidential communications between a client and a lawyer that are related to the provision of legal advice or assistance. A recent New Jersey...more
In all but a few states, the attorney-client privilege can protect a company’s lawyer’s communications with former company employees — as long as the communications focus on the former employees’ tenure at the company. But in...more
Would-be litigants sometimes send a draft complaint to the would-be adversary — either to deter their bothersome conduct or to spur settlement talks. That scenario frequently raises defamation issues — with states taking...more
The last two Privilege Points have addressed the implied waiver implications of litigants (defendant in the Crypto King’s trial and plaintiff in the case described last week) relying on legal advice to defend against or...more
Defendants seeking to avoid liability by relying on a lawyer’s advice trigger a classic “implied waiver.” Although asserting that defense does not itself disclose any privileged communications (as with an intentional or...more
Not surprisingly, both a lawyer’s confidentiality duty and the attorney-client privilege protection last beyond the client’s death. But most courts recognize what they call the “testamentary exception” — allowing disclosure...more