Asserting Attorney-Client Privilege When Affiliated Entities' Interests Diverge
Navigating the Complexities of Joint Representation During Litigation, Spinoffs, Acquisitions or Insolvency
Recording of a 90-minute CLE webinar with Q&A
Conducted on Tuesday, April 19, 2016
Recorded event now available
This CLE webinar will guide corporate counsel in addressing attorney-client privilege challenges that arise when the common interests of corporations and their affiliates or subsidiaries diverge, focusing specifically on best practices for preserving the privilege and structuring privileged communications. The panel will identify potential joint representation pitfalls and discuss tips to avoid or navigate waiver of privilege issues when they occur.
Description
An attorney for a parent corporation generally advises its subsidiaries or affiliates as well. The primary concern for counsel is whether and how attorney-client privilege can be asserted when the affiliated entities’ interests become adverse for a variety of reasons, including, but not limited to, litigation between or involving the parent and subsidiary, inorganic growth of one of the entities, or initiation of bankruptcy or insolvency proceedings. How should counsel approach joint representation in the event of a conflict of interest? If counsel proceeds with joint representation, how should that representation be defined? When is separate counsel necessary?
Further, inorganic growth, including, but not limited to, spin-offs, mergers or acquisitions, presents unique challenges to counsel representing new or divested corporate entities, both through the pendency of the deal transaction and post-closing. In order to avoid the additional cost of production and risk of privilege waiver, counsel needs to consider when and how to contractually transfer privilege rights or how to effectively negotiate provisions around pre-merger client communications.
Listen as our authoritative panel discusses best practices for navigating and resolving attorney-client privilege issues that arise when the common interests of parent corporations and their affiliates or subsidiaries become adverse.
Outline
- Principles governing privilege and confidentiality in joint representation of affiliated companies
- Attorney-client privilege in joint representation of affiliated companies – latest case developments
- Best practices for preserving privilege when interests diverge
Benefits
The panel will review these and other key issues:
- What situations typically cause a parent corporation’s interests to diverge from the interests of its affiliates or subsidiaries?
- What are the scenarios in which attorney-client privilege may be challenged, and how can counsel minimize risk of privilege waiver in these instances?
- What are some best practices for corporate counsel to preserve the privilege when the interests of corporate affiliates or subsidiaries diverge from those of the parent?
Faculty
Charles C. Lemley, Partner
Wiley Rein,
Washington, D.C.
Mr. Lemley represents clients in a variety of civil litigation matters, primarily focused on professional liability coverage and malpractice litigation in federal and state courts. He has significant experience representing clients in commercial, insurance coverage, aviation, and regulatory disputes.
Richard A. Simpson, Partner
Wiley Rein,
Washington, D.C.
Mr. Simpson has a national trial court and appellate litigation practice, with an emphasis on defense of lawyers and other professionals in malpractice and disciplinary cases and defense of insurers in insurance coverage/“bad faith” cases. He also represents clients in commercial litigation, in connection with criminal investigations, and in a wide variety of pro bono matters. He has represented clients in matters pending in 47 states.
Nicole Audet Richardson
Wiley Rein,
Washington, D.C.
Ms. Richardson represents professional liability and general liability insurers in connection with coverage issues and litigation matters before the federal and state courts nationwide. She serves as monitoring counsel in connection with various types of professional liability policies.
Recordings
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Dearborn National
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Bingham Greenebaum Doll
Corporate Law Advisory Board
Stuart M. Altman
Director, Corporate Legal Investigations
Intel
General Counsel
Assurance America
Partner
Mayer Brown
Partner
Foley & Lardner
Michael J. Missal
Inspector General
Department of Veterans Affairs
Partner
Jenner & Block
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