Asserting Attorney-Client Privilege When Affiliated Entities' Interests Diverge

61 Pages·2016·0.99 MB·English

by  Erika Simon

Presenting a live 90-minute webinar with interactive Q&A
Asserting Attorney-Client Privilege When
Affiliated Entities’ Interests Diverge
Navigating the Complexities of Joint Representation During
Litigation, Spinoffs, Acquisitions or Insolvency
TUESDAY, APRIL 19, 2016
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
Today’s faculty features:
Charles C. Lemley, Partner, Wiley Rein, Washington, D.C.

Richard A. Simpson, Partner, Wiley Rein, Washington, D.C.

Nicole Audet Richardson, Associate, Wiley Rein, Washington, D.C.
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Attorney-Client Privilege and
Affiliated Entities

Navigating the Complexities of Joint Representation During
Litigation, Spinoffs, Acquisitions or Insolvency
Charles C. Lemley
Richard A. Simpson
Nicole Audet Richardson
Wiley Rein LLP
April 19, 2016
202.719.7000

These slides are accompanied by an oral presentation and are not to be relied upon for legal advice.
Presentation Agenda
▪ The Attorney-Client Privilege in the Corporate Context
▪ Attorney-Client Privilege & Corporate Transactions
▪ Preventing Unwanted Outcomes in Transactional Work
▪ Questions . . . and Webinar Conclusion
6
The Attorney-Client Privilege in the
Corporate Context
7
Basic Requirements for Attorney-Client
Privilege
✓ An attorney;
✓ A current or prospective client;
✓ A communication about a legal matter; and
✓ A reasonable expectation of confidentiality
8
What Happens When “Client” is a
Corporation?
▪ Who is the “client” to whom the privilege applies?
▪ What is the scope of that privilege?
▪ Who can waive it?
▪ What if the corporation has affiliates?
▪ Does it matter how closely related the affiliates are?
▪ What factors do courts consider?
▪ Does it matter if they are represented by the same counsel?

9
Attorney-Client Privilege &
Corporations
▪ Courts have long recognized that a corporation and its lawyer
may enjoy an attorney-client relationship.

▪ The privilege belongs to the corporate client and it is invoked
by representatives of the corporation.

▪ But, which individuals can speak for the corporate client?
• Control Group Test
• Subject Matter Test
10