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

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Program Materials

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.

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Outline

  1. Principles governing privilege and confidentiality in joint representation of affiliated companies
  2. Attorney-client privilege in joint representation of affiliated companies – latest case developments
  3. 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
Charles C. Lemley
Partner
Wiley Rein

Mr. Lemley represents clients in a variety of civil litigation matters, primarily focused on professional...  |  Read More

Richard A. Simpson
Richard A. Simpson
Partner
Wiley Rein

Mr. Simpson has a national trial court and appellate litigation practice, with an emphasis on defense of lawyers...  |  Read More

Nicole Audet Richardson
Nicole Audet Richardson
Wiley Rein

Ms. Richardson represents professional liability and general liability insurers in connection with coverage issues...  |  Read More

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