Confidential Communications

News & Analysis as of

Welcome Clarification of English Law Regarding Legal Advice Privilege

The High Court has delivered an important judgment on the application of legal advice privilege to factual reports delivered by lawyers to their clients in the context of a regulatory investigation. In the case of Property...more

SEC Seeks Increased Access to Email

Jacqui Merrill, an Associate at The Volkov Law Group, joins us with a posting on the SEC’s request for increased access to emails. In a Senate Judiciary Committee meeting held on September 16, 2015, Securities and...more

Servicers Beware: RESPA Transfer of Servicing Letter May Trigger FDCPA Initial Debtor Communication Disclosure Requirement

In Hart v. FCI Lender Services, Inc., the Second Circuit made it clear that servicers should pay close attention to initial communications with borrowers upon commencing loan servicing when it determined in an August 12, 2015...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

Courts Assess Whether Client and Lawyer Agents are Inside or Outside Privilege Protection: Part II

Last week's Privilege Point discussed a court's consideration of privilege protection for communications with client and lawyer agents. Two weeks later, another court analyzed Debevoise & Plimpton's argument that the...more

Under California Law, Attorney Billing Statements Are Confidential Communications

In County of Los Angeles Board of Supervisors et al. v. The Superior Court of Los Angeles, 2015 DJDAR 4085, the California Court of Appeal for the Second District ruled that attorney invoices may be confidential...more

The Common Interest Privilege May Offer More Protection Than You Thought.

Consider for a moment a situation when an Owner and a General Contractor want to exchange confidential communications relating to a potential legal matter. When the Owner and Contractor are not both parties in a suit, what...more

Blog: FINRA Issues Seven New FAQs Regarding Research Conflict-Of-Interest Rules

Last week, FINRA released seven new FAQs related to the research conflict of interest rules. In essence, FINRA analyzes the types of facts and circumstances that might be decisive in determining whether certain conduct or...more

Privilege for Patent and Trademark Agents

As a result of Bill C-59, when passed, clients will enjoy a statutory privilege in their confidential communications with Canadian patent and trademark agents. This will provide Canadian clients who use patent and...more

Submitting Your Defense Bills to Insurers Could Mean Waiving Privilege

Recently, the California Court of Appeal decided County of Los Angeles Board of Supervisors v. Superior Court, 235 Cal. App. 4th 1154 (2015), a case considering whether the Los Angeles County Sheriff's Department could be...more

Peer Review Privilege: Facts vs. Conclusions

All states have some degree of confidentiality protection for peer review activities and the information generated by those activities, and there is additional federal protection for information gathered and created by...more

"California Consumer Class Actions: What CashCall Means for Businesses in Privacy Cases"

The California Invasion of Privacy Act (CIPA) imposes criminal penalties on anyone who intentionally "eavesdrops upon or records [a] confidential communication" in California without the consent of all parties to the...more

New York Extends Common Interest Privilege Protection to Non-Litigation Communications

Ordinarily, when a communication between an attorney and her client is disclosed to a third party, that communication loses its privileged status. The common interest privilege operates as an exception to that rule that...more

Another Federal Court Rules Debt Collector’s Voice Message Does Not Violate FDCPA

The U.S. District Court for the Eastern District of New York recently ruled that a voicemail message containing the caller’s name and identifying the caller as a debt collector with “an important message” was not a...more

Is In-House Counsel Your Attorney?

Here’s the obvious: to invoke the attorney-client privilege, the communication must be made to, or in the presence of, the client’s attorney. But things become murky when you have to decide whether that attorney is actually...more

Insurers Be Warned, Your Communications Are Discoverable

Insurers and reinsurers regularly communicate regarding matters they view as confidential. These communications often relate to claims, both routine and litigated, by the underlying insureds. Insureds, in turn, seek discovery...more

Does the Attorney-Client Privilege Protect Communications With A Company’s Outside Consultants?

A recent decision by the Massachusetts Land Court provides helpful guidance to clients who frequently rely on independent contractors such as brokers, project managers and public relations consultants to interface with their...more

Common Sense Prevails as D.C. Circuit Applies Upjohn in Vacating District Court Order to Produce Investigation Reports

Government contractors and other companies subject to internal investigation requirements won some relief from the United States Court of Appeals for the D.C. Circuit on June 26 with a decision that firmly reiterated that...more

Oregon Supreme Court: Law Firm In-House Privilege Is Alive and Well - What Should Lawyers Do When They Have Concerns About the...

The Oregon Supreme Court holds that law firms can avail themselves of attorney-client privilege for in-house communications to the same extent as all other entities with in-house counsel. This is so even if the party...more

Privileged Communications With Outside Consultants

Penn State University recently decided to waive attorney-client privilege and cooperate in the criminal prosecutions of certain former employees. Obviously, the former employees have attempted to assert privilege to exclude...more

This Interest May Be Common, But It’s Still Privileged

Section 954 of the California Evidence Code establishes a privilege “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer”. A “confidential communication...more

The ERISA Litigation Newsletter - March 2014

Our first article this month addresses the treatment of the attorney-client privilege in employee benefits matters. Pursuant to the so-called "fiduciary exception," communications between an attorney and a plan fiduciary are...more

Retaining the Attorney-Client Privilege in a Merger

In Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, Chancellor Strine of the Delaware Chancery Court recently reaffirmed that the target company in a Delaware merger is the sole holder of the...more

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