News & Analysis as of

Confidential Information Attorney-Client Privilege

Choice of Laws Analyses Can Be Dispositive

by McGuireWoods LLP on

Although most jurisdictions agree on many basic privilege issues, some important variations remain. The most important involves a few states' rejection of the majority Upjohn v. United States, 449 U.S. 383 (1981) rule...more

Healthcare Employers, Beware: HIPAA Whistleblowers Could Be (Legally) Leaking Protected Health Information

by Fisher Phillips on

In this day and age, healthcare employers are quite familiar with the Health Insurance Portability and Accountability Act (HIPAA), which protects the disclosure of patients’ confidential health information. After all, in the...more

How Can Law Firms Help Maximize Privilege Protection for Consultants They Hire?

by McGuireWoods LLP on

Last week's Privilege Point highlighted the difficulty of establishing that client agents/consultants are inside privilege protection. In contrast, lawyer’s agents/consultants can deserve privilege protection – but only if...more

Florida Supreme Court Says External Peer Review Reports are Discoverable Under Amendment 7

by Carlton Fields on

On October 26, in Edwards v. Thomas, et al. (SC15-1893) the Florida Supreme Court held that external peer review reports are discoverable under Amendment 7. ...more

Courts Use Rule Language and Common Sense to Expand Work Product Protection: Part I

by McGuireWoods LLP on

Unlike the common law-dominated attorney-client privilege which developed organically in each state, work product protection comes from court rules. One might think that this would simplify courts' application of that...more

Does a Client Risk Privilege Protection by Bringing Her Mother to a Lawyer Meeting?

by McGuireWoods LLP on

Because it is absolute and can hide important facts from easy discovery, the attorney-client privilege is hard to create, narrow, and fragile. Among other things, even friendly third parties' presence can abort privilege...more

Inadvertent Disclosure of Privileged Documents? Some Suggested Steps after the Initial Panic!

In the event of an inadvertent disclosure of documents (electronic or otherwise), an attorney is ethically obligated to promptly notify the sender of the attorney’s receipt of the documents. It is then up to the sender to...more

The Trouble with Drafts: Part I

by McGuireWoods LLP on

Because attorney-client privilege protection depends on confidentiality, the privilege evaporates once clients determine to disclose privileged communications – even before the disclosure occurs. For example, the final...more

Conflicting Court Decisions on Privilege Issues Create Risks for Parties in M&A

by Stinson Leonard Street on

A recent court decision exemplifies the challenges that businesses face in attempting to predict the law that will control privilege questions. The court decided that the law of the state where the court is located governs...more

Can the Privilege Protect Communications in a Public Place?

by McGuireWoods LLP on

If clients and their lawyers engage in otherwise privileged communications in the presence of third parties, the privilege rarely if ever protects the communications. But what if the communications occur in a public place...more

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

See You In Court! - June 2017

by Shipman & Goodwin LLP on

The members of the Nutmeg Board of Education are tired of having to put up with the constant barrage of criticism. Cut teaching positions? The parents go crazy. Add teaching positions? The taxpayer group goes crazy....more

A victory for attorney-client confidentiality: DOL takes formal steps to rescind controversial persuader regulation

by Thompson Coburn LLP on

In March 2016, the DOL issued a new regulation that greatly expanded the obligations of employers and their attorneys to publicly file sensitive information regarding so-called “persuader activity.” Under the regulation,...more

Attorney Billing Records Not Categorically Protected by California Attorney-Client Privilege

by Holland & Knight LLP on

Holland & Knight issued an alert in June 2015, written by Allison Martin Rhodes and Craig S. Weinstein, regarding an earlier California Court of Appeal ruling in this case. This alert provides an update after a December 2016...more

Court Holds that Attorney-Client Privilege Extends to Environmental Consultants Hired by an Attorney on Behalf of a Client, but...

by Miller Starr Regalia on

The attorney-client privilege protects communications made in confidence by a client to its attorney for the purpose of obtaining legal advice. The privilege can extent to consultants and experts hired by the attorney on...more

CAS Legal Mailbag Question of the Week – May, 2017 #2

by Shipman & Goodwin LLP on

Dear Legal Mailbag: When I signed up to be an administrator, I never realized what expansive rights nosy people have under the Freedom of Information Act. I understand that the public has the right to know certain things,...more

"Preserving Attorney-Client Privilege, Work-Product Protection During Internal Investigations"

When companies conduct investigations that remain strictly internal, maintaining confidentiality is straightforward. But many investigations are conducted in cooperation with U.S. government regulators, who expect companies...more

"DOJ and SEC Cooperation Policies"

Whereas the privilege and work-product doctrine generally require confidentiality, cooperation with the government often necessitates disclosure. The Department of Justice (DOJ) and Securities and Exchange Commission (SEC)...more

Don’t Let New Technology Cloud Your Legal Judgment

Law firms are slowly but steadily moving to the cloud. According to an American Bar Association report, 37.5% of lawyers reported the use of web-based software services or solutions in 2016, up from 31% in 2015, and 30% in...more

Connecticut Supreme Court To In-House Counsel: Your Internal Communications Are Privileged Only If Their "Primary" Purpose Was To...

by Pullman & Comley, LLC on

In September 2016, the Connecticut Supreme Court issued a decision providing guidance on questions that frequently bedevil in-house counsel: are internal communications to and from in-house counsel protected by the...more

Ex-General Counsel Dodged Privilege Claims Before $14.5 Million Verdict

by Zuckerman Spaeder LLP on

In our last post, we detailed how Sanford Wadler, the former general counsel of Bio-Rad Laboratories, won a $14.5 million verdict against Bio-Rad. Before Wadler could get to a jury, however, he had to surmount a...more

Accused of Taking Confidential Information? Five Immediate Steps That Can Limit Risk

by Kobre & Kim on

Disputes over trade secrets and confidential information have increased dramatically in recent years. Often arising after a business hires an employee from a competitor, a proposed acquisition falls through, or information is...more

For Our Eyes Only: Understanding the Attorney-Client Privilege and Its Application to Banks

by Pepper Hamilton LLP on

The attorney-client privilege is a rule of evidence that prevents the adverse party in a lawsuit from obtaining access to certain communications. If properly understood and wellmanaged, this privilege offers a useful tool for...more

Revenge of the Whistle-blower: Possible Consequences of Compliance Failures

In a company with a robust compliance culture, potential whistleblowers can express their concerns without fear of retribution. By contrast, the penalty for a culture that silences whistleblowers just got steeper. Companies...more

Reserving Privilege for the Few: The High Court Confirms the Narrow Interpretation of “Client” for the Purposes of Legal Advice...

by Latham & Watkins LLP on

Following Three Rivers (No 5) [2003] EWCA Civ 474, the High Court has held that notes of interviews of employees, prepared as part of certain internal investigations by a bank’s solicitors, for the purpose of enabling the...more

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