Attorney-Client Privilege Between Affiliated Entities: Who Owns the Privilege When Interests Diverge?

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

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


Conducted on Tuesday, April 22, 2014

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 advising affiliated corporations, focusing specifically on best practices for preserving the privilege when the interests of a parent company and its subsidiaries diverge. The panel will identify potential joint representation pitfalls and discuss tips to avoid or navigate waiver of privilege issues when they occur.

Description

When an attorney for a parent corporation also advises its subsidiaries or affiliates, attorney-client privilege issues abound. The Model Rules of Professional Conduct state that a lawyer who represents a corporation does not automatically represent an affiliated organization. Most courts consider multiple factors to decide whether a parent and affiliate are joint clients of the attorney.

The primary concern for counsel is what happens to the privilege when the affiliated entities' interests become adverse as a result of litigation between the parent and subsidiary, sale of one of the companies, or insolvency of one of the parties. Which communications are protected? Does the parent company own the privilege as to documents shared between the parent and an affiliate company or does the privilege extend to the subsidiary? When does joint client privilege apply?

Counsel for parent corporations and subsidiaries must take steps to maintain control of the privilege and minimize the likelihood that confidential documents will be discoverable when interests diverge. Counsel should identify and document the common interest and consider whether each entity should retain separate counsel. The scope of joint representations should be outlined in an engagement letter or in a sales agreement for spinoffs and acquisitions.

Listen as our authoritative panel discusses best practices for navigating and resolving attorney-client privilege issues that arise when attorneys advise both a parent company and its affiliates or subsidiaries.

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Outline

  1. Attorney-client privilege between affiliated corporations—latest case developments
  2. Best practices for preserving privileges when interests diverge

Benefits

The panel will review these and other key questions:

  • What is the joint defense privilege and how does it apply when it comes to the representation of corporations and their affiliates?
  • What factors do courts consider in determining whether a parent company and its affiliate are joint clients of an attorney?
  • What are some best practices for parent companies and affiliates to preserve the privilege when their interests diverge?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Faculty

Stephen A. Fogdall
Stephen A. Fogdall

Partner
Schnader Harrison Segal & Lewis

Mr. Fogdall participates in numerous areas of the Firm's commercial litigation practice, including financial...  |  Read More

Rocky C. Tsai
Rocky C. Tsai

Partner
Ropes & Gray

Mr. Tsai represents a broad range of financial, technology and life sciences clients in securities and commercial...  |  Read More

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