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Asserting Attorney-Client Privilege When Affiliated Entities' Interests Diverge: Common Interest Doctrine

Navigating the Complexities of Joint Representation During Litigation, Spinoffs, Acquisitions, or Insolvency

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, May 11, 2023

Recorded event now available

or call 1-800-926-7926

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.


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.



  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


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 the 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?


Duvall, Kenneth
Kenneth Duvall

Partner & Assistant General Counsel
Bilzin Sumberg Baena Price & Axelrod

Mr. Duvall’s practice primarily focuses on business litigation, financial, insurance, and construction matters....  |  Read More

Rose, Daniel E.
Daniel E. Rose

Volpe Koenig

Mr. Rose provides IP counseling and patent preparation and prosecution in niche subject matter areas of media...  |  Read More

Whittaker, Vincent
Vincent Whittaker


Mr. Whittaker is an experienced federal and state trial lawyer with over two decades of handling high-stakes complex...  |  Read More

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