Last week’s Privilege Point described the Missouri Supreme Court’s understandable conclusion that a railroad employee did not have a personal attorney-client relationship with railroad lawyers who interviewed her about an...more
The very term “attorney-client privilege” would seem to necessitate a lawyer’s involvement in any communications deserving that evidentiary protection. But in some critical intra-corporate situations, the protection covers...more
Last week’s Privilege Point described S.D.N.Y. Judge Lewis Liman’s conclusion that a company waived privilege protection for legal advice it received from its counsel by disclosing the advice to its financial advisor China...more
Companies dealing with the pandemic (and finding themselves in pandemic-triggered future litigation) may seek public relations consultants’ assistance. Companies and their lawyers should remember that most courts reject...more
Attorney-client privilege protection normally involves a client and a lawyer. Must the “lawyer” side of that dialogue always be a fully authorized lawyer?...more
All ethics and privilege issues in the corporate context start with a basic question -- who is the lawyer’s client? The default answer is that lawyers represent the incorporeal entity, acting through its “duly authorized”...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
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
Lawyers representing corporations should in nearly every circumstance provide an Upjohn warning to avoid accidentally creating attorney-client relationships with company employees. Upjohn v. United States, 449 US 383 (1981)....more
Nearly every court considers client agents outside privilege protection unless those agents are necessary for facilitating privileged communications between clients and their lawyers. Some courts occasionally take a broader...more
Most courts applying privilege principles automatically treat wholly-owned subsidiaries' employees as if they were the parent's employees. However, occasionally courts take a narrower view.
In Au New Haven, LLC v. YKK...more
Last week's Privilege Point described a Maine case applying the narrow pre-Upjohn "control group" standard for corporate communications. Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, ---A.3d---. Illinois is by far the largest...more
Every privilege analysis should start with determining the applicable law. In the corporate context, federal courts handling federal question cases and nearly every state follow the Upjohn standard. Upjohn v. United States,...more
The last two Privilege Points described the Washington Supreme Court's 5-4 rejection of privilege protection for communications with former corporate employees (Newman v. Highland School Dist., 186 Wash. 2d 769, 381 P.3d 1188...more
Last week's Privilege Point described the Washington Supreme Court's 4-3 rejection of privilege protection for communications with former corporate employees.Newman v. Highland Sch. Dist., No. 90194-5, 2016 Wash. LEXIS 1135...more
In a 4-3 vote, the Washington Supreme Court held that an institution's lawyers' communications with former employees did not deserve privilege protection. Newman v. Highland Sch. Dist., No. 90194-5, 2016 Wash. LEXIS 1135...more
Companies' lawyers frequently interview third-party witnesses. Companies' adversaries often seek the resulting interview transcripts, notes, summaries, reports, statements or affidavits — which can generate disputes over fact...more
Many previous Privilege Points have addressed the corporate-friendly "functional equivalent" doctrine, under which non-employees who essentially act as employees are inside privilege protection. An equal number of Privilege...more