Attorney-Client Privilege and Financially Distressed Businesses

Meeting Confidentiality Challenges Arising from Heightened Regulatory Oversight, Insolvency Proceedings and Bankruptcy

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

Conducted on Wednesday, September 9, 2009

Course Materials

This seminar will review the attorney-client privilege and waiver issues for companies facing financial difficulty or in bankruptcy and will outline strategies to preserve the privilege.


As companies face financial troubles and possible bankruptcy, counsel confront a variety of decisions that raise significant concerns over protection of confidential communications and the attorney-client privilege.

Corporate counsel must be aware of gaps in protection where companies risk disclosing information that could later be used against them. If counsel does not proactively consider all privilege issues, the business may be adversely impacted in an investigation or bankruptcy-related proceedings.

Further, institutions that have received government stimulus money are under heightened government scrutiny. To protect confidential communications, companies must proceed with caution as government regulators and investigators demand access and information to which they may or may not be entitled.

Listen as our authoritative panel of attorneys examines the attorney-client privilege in the regulation and investigation of a company’s financial health and within bankruptcy proceedings. The panel will discuss steps to mitigate the risk of waiver and to protect confidential communications.



  1. Overview of the attorney-client privilege
    1. Who holds the corporation’s privilege
    2. Timing/duration
    3. Waiver of the privilege
  2. Attorney-client privilege in regulation and investigation of company’s financial health
    1. Protecting privilege while dealing with regulators
    2. Investigations and audits
  3. Attorney-client privilege in bankruptcy-related proceedings
    1. Scope of privilege
    2. Communications between debtors and creditor constituencies
    3. Jointly represented parent company and subsidiaries
    4. What constitutes confidential communications?
    5. Protecting business plans and valuation information
  4. Strategies/best practices for preserving the privilege and mitigating risk of waiver


The panel will review these and other key questions:

  • Who holds the corporation’s attorney-client privilege? Does this change once the corporation files for bankruptcy?
  • What is the scope of the attorney-client privilege in communications involving creditors’ committees and committee counsel?
  • Are documents and information shared with counsel in anticipation of filing for bankruptcy discoverable?
  • What are key business and legal practices for preserving the attorney–client privilege as companies face financial distress or bankruptcy?


Richard B. Kapnick
Richard B. Kapnick

Sidley Austin

He is an experienced litigation attorney serving as Lead Counsel in numerous matters involving complex litigation. He...  |  Read More

Stuart M. Altman
Stuart M. Altman

Hogan & Hartson

He focuses on white collar criminal investigations and defense, including representing clients in securities...  |  Read More

Brenda R. Sharton
Brenda R. Sharton

Goodwin Procter

She has a national litigation and counseling practice in the areas of commercial litigation, financial services and...  |  Read More

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