Category Archives: Privileges

Does the A-C Privilege Survive a Company’s Death?

When it comes to interesting ethical quandaries, the case of U.S. v. Martin Shkreli is the gift that keeps on giving. As we discussed in a previous post, Martin Shkreli has asserted the “advice-of-counsel” defense in the securities fraud case he is facing in the Eastern District of New York. Since our last post, Shkreli has served a document subpoena on one of the law firms that represented several of his companies, as well as him personally. What complicates this matter, however, is the fact that many of these companies are now defunct and therefore lack any active individuals who can waive the attorney-client privilege on their behalf.

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Is General Advice from an Attorney Privileged?

Attorneys consistently provide guidance to clients, but not all of the consultation may be considered legal advice. Often an attorney’s role extends beyond the boundaries of legal advice and into other topics such as general business advice. When this occurs, the definition of what constitutes “legal advice” can become blurred, which has implications on privilege. In the recently released decision in Harrington v. Freedom of Information Commission, et al., the Connecticut Supreme Court examined this issue in detail. According to the court, the case “provides an opportunity to address the circumstances under which communications relating to both non-legal and legal advice may be covered by the attorney-client privilege.”

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Who Is Really the Client?

The attorney-client privilege is one of the most basic tenants of professional liability. While the general rule itself is uncomplicated, complex circumstances between attorneys and their clients can often trip up even the most experienced lawyer. Take for example the following New Jersey malpractice case involving a law firm’s general counsel which raises the question: who is really the client?

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Duties of the Unintended Email Recipient

Model Rule of Professional Conduct 1.6(c) provides that “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure” of client information. Generally that isn’t too difficult but things get complicated when it comes to electronic communication. Over 220 billion e-mails are delivered each day. According to reports, e-mail remains the most “pervasive form of communication in the business world.” Given the rampant use of e-mail, eventually there will be mistakes: your e-mail will land in the wrong hands or you will receive an e-mail meant for someone else. In some cases, the disclosure can be harmless, but what happens when the information lands in the hands of counsel for your adversary?

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Attorney Uses Confidential Info to Complete Insider Trades

The concern for the public’s trust in the legal profession remains a core goal of attorney ethics committees nationwide. Especially with the ease of accessing confidential information, attorney’s protection of client data has truly come into focus in recent years. This week, the Kentucky Supreme Court will decide whether an attorney will be permitted to continue his career in light of allegations that he used confidential client information to complete insider trades. The Kentucky Board of Professional Conduct recommended that the attorney be suspended for two years.

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Subpoenas and Ethical Duties to Clients

Subpoenas provide a means to obtain testimony or documents from a non-party. Many lawyers routinely issue subpoenas during the discovery or trial phases of litigation. But lawyers are sometimes on the receiving end of a subpoena. This is when things get a bit tricky.

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Dual Representation Risks Waiver of AC Privilege

Professionals must communicate clearly with clients regarding the existence and scope of the professional-client relationship. This is especially true for general counsel, who represent a company but also interact with its employees. We discussed these issues here in the context of the Penn State/Sandusky scandal two years ago but lingering issues remain which highlight the risks of dual representation.

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Accountants: You’re Privileged Too

The accountant-client privilege doesn’t seem to get as much attention as the other more commonly used privilege defenses such as attorney-client or doctor-patient. However, a case out of the Illinois Supreme Court earlier this year is giving the other “a/c privilege” a lot of press. While not all states recognize this privilege, the ones that do generally find that the client is the holder of the privilege and requires the client’s consent to disclose any information exchanged between the accountant and client. Illinois, however, has decided to take a slightly different approach.

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Perusing Privileged Papers Prohibited

What to do? When reviewing discovery provided by your adversary you stumble upon a privileged document. It happens…sometimes privileged materials fall through the cracks and into the hands of opposing counsel. Do you read it, burn it, return it? According to a recent New Jersey decision, reading an inadvertently produced privileged document may be grounds for disqualification.

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Death to the Company is Death to the AC Privilege

The law in Pennsylvania, like most other jurisdictions, is clear that the attorney-client privilege survives the death of an individual. However, until recently the law was not so clear as to whether that same privilege applies to a corporation after it dissolved or “died.” Earlier this year the Pennsylvania Superior Court answered this question in Red Visions Systems v. National Real Estate Information Services, and just recently, the state Supreme Court denied allocator, leaving the Superior Court’s decision as the law of the state.

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