Attorney-Client Privilege and Dual-Purpose Advice: Convincing Courts to Maintain Confidentiality

Protecting Privilege When Counsel Acts as Business Adviser

A live 90-minute CLE video webinar with interactive 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.

Tuesday, October 11, 2022

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

or call 1-800-926-7926

This CLE webinar will seek to comprehensively address the issue of “mixed” or “dual-purpose” communications between clients and counsel. The CLE panel will survey the states’ different approaches to the issue, discuss key federal court decisions on the topic, and apply these state and federal law principles to contexts where the question of dual-purpose communication commonly arises.

Description

Most business clients expect their lawyers to serve as business advisors as well as legal advisors. In today’s competitive legal market, most lawyers are eager to oblige them. But meeting this client expectation is not without its perils. By mixing business advice or information into legal communications, lawyers or their clients may turn those communications into “dual-purpose” documents, thereby jeopardizing their privileged status.

The issue of “dual-purpose” or “mixed” documents and communications is being litigated with more frequency, and it affects litigators and transactional attorneys alike. As transactional lawyers communicate with clients outside of litigation or in pre-litigation contexts, they must understand and abide by the rules that courts will apply as they assess privilege claims over those communications in subsequent litigation. When litigating privilege claims over such communications, litigators must understand the decisive arguments that have persuaded courts to withhold or disclose dual-purpose documents in past cases.

Listen as this esteemed panel guides lawyers through how to identify dual-purpose communications, discusses state court approaches to applying the attorney-client privilege, reviews the existing methods and variations used in federal court and the current circuit split, and then offers a roadmap for litigators.

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Outline

  1. State law survey. The panel will identify differences in the states’ approaches to “dual-purpose” communications.
  2. Key federal court decisions. The panel will discuss key federal court decisions applying federal common law under FRE 501, including the potential circuit split on the issue.
  3. Industry and context-specific application of key principles. The panel will apply these principles to in-house, transactional, pre-litigation, and litigation contexts.

Benefits

The panel will discuss these and other key issues:

  • How do courts in my state analyze privilege claims over dual-purpose documents?
  • What rules do federal courts in my circuit apply to dual-purpose documents in cases where federal common law controls under FRE 501?
  • What are best practices for in-house attorneys, who are enmeshed in the day-to-day business affairs of their companies, to ensure that their communications with colleagues remain privileged?
  • What are the most persuasive arguments and approaches for litigators seeking to withhold or compel disclosure of a dual-purpose document?

Faculty

Hutter, Bradley
Bradley R. Hutter

Attorney
Fafinski Mark & Johnson

Mr. Hutter is an Associate in FMJ’s Litigation and Bankruptcy & Insolvency practice groups. He represents...  |  Read More

Shriver, Ernest
Ernest (Pat) Shriver

Shareholder
Fafinski Mark & Johnson

Mr. Shriver is a corporate, transactional and intellectual property attorney, focusing on small to medium sized...  |  Read More

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You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video

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