News & Analysis as of

Attorney-Client Privilege

Who Can Sue an Attorney—and How to Stop Them

by Dentons on

Unlike some other torts, the class of plaintiffs who can bring legal malpractice claims against attorneys is fairly limited. Generally speaking, legal malpractice claims can only be raised by a limited set of people to whom...more

California Evidence Code Section 956(B): How To Preserve The Attorney-Client Privilege Over Advice Concerning Medical And...

by Fox Rothschild LLP on

California Governor Jerry Brown signed an amendment to California Evidence Code Section 956 ominously known as the “crime-fraud exception”. The newly-revised Code Section attempts to address the tension between state and...more

Beware What You Share: Privilege Waiver Risks in Investigations

by McGuireWoods LLP on

In responding to regulatory and government investigations, firms are often faced with the question of how to balance the desire to cooperate with the need to preserve privilege over an internal investigation. Financial...more

When Can the Privilege Protect Employee-to-Employee Communications?

by McGuireWoods LLP on

Because privilege logs generally list the authors and recipients of withheld communications, corporations' adversaries frequently cite such logs in challenging the corporations' privilege claims when a log shows that no...more

The Lawyers' Lawyer Newsletter - Recent Developments in Risk Management - January 2018

by Hinshaw & Culbertson LLP on

Prospective Clients – Avoiding Communication of Confidential Information Except as Needed to Check for Conflicts of Interest - Mt. Hebron Dist. Missionary Baptist Assoc. of Al., Inc. v. Sentinel Ins. Co., 2017 U.S. Dist....more

FERC Enforcement Litigation Update: Defendants Cannot Take Discovery of FERC’s Decision Not to Pursue Enforcement Cases Against...

One of the big Federal Energy Regulatory Commission (FERC) Enforcement litigation developments of the past two years has been the federal judiciary’s rejection of the agency’s “de novo review” position in electricity market...more

Trump-Related Circuit Court Decision Includes Troubling Waiver Analysis

by McGuireWoods LLP on

Because historical facts do not deserve privilege protection, disclosing those facts does not trigger a privilege waiver. Thus, disclosing historical facts to the government should not waive the disclosing client's privilege...more

Incident Response – Privilege and Work Product Issues After In re Premera

by Locke Lord LLP on

Despite considerable incident response work after numerous alleged data breaches, very few opinions have addressed the application of attorney-client privilege and the work-product doctrine to the materials created by such...more

In-House Counsel: How to Avoid Missteps in the Social Media Minefield

by Ward and Smith, P.A. on

While social media has become ubiquitous, attorneys are subject to particular restrictions online. During Ward and Smith’s 2017 In-House Counsel Seminar two attorneys reviewed some of the potential pitfalls in-house counsel...more

Should You Look Outside Your Organization To Investigate A Sexual Harassment Complaint?

A recent article in The New York Times questioned the propriety and effectiveness of a sexual harassment investigation conducted by a company’s Human Resources Department. The article noted the “inherent conflict of...more

Courts Address Requests That They Review Withheld Documents In Camera

by McGuireWoods LLP on

Because attorney-client privilege protection depends mostly on content, courts frequently read withheld documents in camera. Work product protection depends mostly on context rather than content, but even with that...more

What is "evidence" of a privileged communication?

by Allen & Overy LLP on

Legal advice privilege attaches not just to those communications between lawyer and client which have as their purpose the giving or receiving of legal advice, but also extends to material which “evidences” the substance of...more

Illinois Appellate Court Recognizes Common Interest Exception to Waiver of Privilege Rule

by Foley & Lardner LLP on

On December 7, 2017, an Illinois appellate court held that co-defendants in a case who agree to share information pursuant to their common interest in defeating their litigation opponent do not waive either the...more

Is Your Company Email to Santa Protected?

by Gray Reed & McGraw on

Frazzled by the incessant demands for her company Acne Brick’s financial records from her husband’s divorce lawyer Ditcher Quick, company president Annie Acne was wondering what her next maneuver might be when her Information...more

Does the Work Product Doctrine Protect the Identity of Witnesses a Lawyer Chooses to Interview?

by McGuireWoods LLP on

Litigants obviously must identify all witnesses with potentially relevant knowledge about litigated issues. But can litigants claim work product protection for the identity of the subset of those witnesses that their lawyers...more

4 Things the Top E-Discovery Cases of 2017 Can Teach You

by Exterro, Inc. on

Two years on from the last round of FRCP amendments, the courts are still clarifying how these e-discovery rules will be interpreted. One lens through which we can better understand how the court is interpreting the...more

Matt Lauer, Charlie Rose, Harvey Weinstein, Bill O’Reilly, Who’s Next?—Are you prepared for harassment allegations in your...

by Ruder Ware on

Sexual harassment in the workplace is not new. However, the rash of recent cases reported in Hollywood, Corporate America, and our Federal Government are shining a new spotlight on the issue. As an employer in Wisconsin,...more

Attorneys Switching Sides During Litigation Sometimes Allowed… at least in the First Department!

by Farrell Fritz, P.C. on

Notwithstanding general public opinion of attorney ethics, most people (including attorneys) believe that an attorney cannot dump a client in the middle of litigation to represent the other side. However, attorneys in the...more

How Do Courts Decide If Employees CC'ing a Lawyer are Implicitly Seeking Legal Advice?

by McGuireWoods LLP on

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

Maximizing Efficiency, Minimizing Risk: Understanding the Common Interest Doctrine

by K&L Gates LLP on

The common interest doctrine provides that, if two or more separately represented entities with a common legal, factual, or strategic interest exchange information with each other and their respective lawyers, a communication...more

2017 An Illuminating Year in E-Discovery Case Law

by Exterro, Inc. on

In a half-hour conversation with Exterro Director of Marketing Mike Hamilton, Bree Kelly, Attorney and Editor of EDiscoveryLaw.com, summarized the past year in e-discovery case law as illuminating. Perhaps thankfully, there...more

DOJ Issues New FCPA Policy Offering Incentives to Encourage Disclosure of Foreign Bribery and Corruption Misconduct

by Foley & Lardner LLP on

On November 29, 2017, Deputy Attorney General Rod Rosenstein announced that the U.S. Department of Justice (DOJ) was issuing a new enforcement policy covering its enforcement of the Foreign Corrupt Practices Act (FCPA). The...more

Is it a Privilege to Speak With a PR Consultant? Maybe Not for Kesha!

by Farrell Fritz, P.C. on

So you were just retained on what could become a high-profile case. The stakes are high, and it’s unclear how this will play in the media. The issue may arise based on the parties to the case, the nature of the claims, or...more

New PTO Rule on Attorney-Client Privilege Before the PTAB

by McDermott Will & Emery on

The US Patent and Trademark Office (PTO) issued a new rule on attorney-client privilege for trials before the Patent Trial and Appeal Board (PTAB) on November 7, 2017. The new rule takes effect December 7, 2017. The new rule...more

Breaking News Paris Court of Appeal Grants Legal Privilege Protection

by Reed Smith on

On 8 November 2017, the Paris Court of Appeal decided that emails between in-house counsels relating to the defence strategy set up by the company’s outside counsels, although they neither originated from, nor were addressed...more

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