Every lawyer knows the incredible scope and strength of their ethics confidentiality duty. More than any other profession, lawyers must maintain the absolute secrecy of nearly all information relating to their clients. But...more
Lawyers should remind their clients that copying a lawyer on an email does not automatically render the email privileged. But the story doesn't end there.
In Dejewski v. National Beverage Corp., the court recited the...more
Corporate clients and their lawyers must look ahead to assess the privilege implications of their litigation positions.
In Global Textile Alliance, Inc. v. TDI Worldwide, LLC, 847 S.E.2d 30, 33 (N.C. 2020), defendants...more
Several previous Privilege Points have summarized often-complicated judicial holdings on who owns privilege protection after corporate stock or asset transactions. It should come as no surprise that the privilege ownership...more
Corporate stock and asset sale transactions necessarily implicate ownership of: (1) ordinary day-to-day privileged communications about environmental matters, labor matters, etc., and (2) privileged communications about the...more
Last week’s Privilege Point described a favorable Delaware state court decision finding that a post-reorganization trust and its largest stakeholder could rely on the common interest doctrine to protect their communications –...more
The attorney-client privilege rests on a grand societal purpose — encouraging clients to safely share with their lawyers all the pertinent facts, so lawyers can guide them in a lawful direction. This is the same societal...more
Clients and their lawyers often work with consultants. If such consultants are found to be outside privilege protection: (1) communications with them do not deserve privilege protection; (2) their participation in otherwise...more
The attorney-client privilege protects communications -- rather than historical facts, the circumstances of attorney-client relationships or communications, etc. This basic principle often precludes deponents from citing the...more
American courts assessing privilege protection for international communications usually apply U.S. privilege law to communications that "touch base" with the U.S. But purely overseas communications present a more difficult...more
Last week's Privilege Point described a North Carolina state court's predictable rejection of privilege protection for communications with a company's technical consultant. Does the same harsh standard apply when clients...more
Most courts apply the common interest doctrine only in litigation-related circumstances, although a few courts extend the doctrine to transactional contexts.
In BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank...more
The common interest doctrine can avoid the normal waiver implications of disclosing privileged communications to third parties. But some courts do not recognize the doctrine at all, and most courts impose various requirements...more
Starting 10-15 years ago, many courts addressed corporate employees' privilege claims for communications with their personal lawyers (usually employment lawyers) using their employers' email infrastructure. Most states (other...more
In the corporate world, the attorney-client privilege does not protect communications to or from corporate lawyers acting in a business role. An analogous principle can deprive governments of their attorney-client privilege...more
The attorney-client privilege protects confidential communications between clients and their lawyers. Corporate client consultants may also deserve this protection if they act as the "functional equivalent" of corporate...more
Electronic communications exacerbate judges' already difficult task of determining if employees copying lawyers on their communications with fellow employees are implicitly seeking legal advice – and thus deserve privilege...more
Clients' agents/consultants are nearly always outside privilege protection. This generally means that their documents do not deserve privilege protection; their presence during otherwise privileged communications aborts that...more
The privilege can protect clients' requests for legal advice, and lawyers' responses. But employees simply cc'ing a lawyer on an email to another employee cannot guarantee privilege protection – because the email might be...more
Content is king in the privilege world, in contrast to the work product protection – which largely depends on context. For this reason, the privilege rarely if ever protects the facts and circumstances of (1) the...more
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
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
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
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
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