Attorney-Client Privilege in M&A Deals: Lessons From Recent Cases for Preserving and Controlling the Privilege

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

Conducted on Monday, December 21, 2015

Recorded event now available

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Program Materials

This CLE webinar will guide deal counsel in navigating the challenges of preserving and controlling the attorney-client privilege in the context of M&A transactions. The panel will discuss when and how the attorney-client privilege is implicated in communications and documents exchanged between prospective deal parties as well as between deal parties and other members of the transaction team, such as investment bankers and other financial advisors. The panel will also examine the developing body of case law on who controls the privilege when litigation arises after a deal has closed and implications for M&A practitioners.


Attorney-client privilege issues abound in M&A transactions due to the disclosure of sensitive information between prospective deal parties during due diligence and negotiations as well as the disclosure of deal-related documents to financial advisors and other third parties. Counsel advising deal parties must provide guidance on sharing information without waiving the privilege.

When litigation arises after a deal has been consummated, counsel must understand how to use the attorney-client privilege to protect pre-closing privileged communications. Case law has emerged in recent years regarding who controls the attorney-client privilege after an M&A deal closes, however court decisions are inconsistent. Some counsel have successfully used the common interest privilege to protect these confidential communications.

Listen as our authoritative panel of attorneys examines current issues surrounding the attorney-client privilege in the context of M&A deals, including who holds the privilege, how it can be waived, and how to shield information. The panel will discuss their insights and best practices to preserve and control the privilege.



  1. Overview of attorney-client privilege issues in the context of M&A
  2. Recent case law developments
  3. Best practices to preserve the privilege
    1. During deal due diligence negotiations
    2. During litigation post-closing


The panel will review these and other key issues:

  • What lessons do recent court rulings offer M&A counsel in developing best practices and advising deal parties to protect privileged communications?
  • In what circumstances can counsel clearly assert the privilege—and how can counsel navigate the grey areas?
  • How can the common interest privilege be leveraged to protect pre-closing confidential communications when litigation ensues post-closing?


Lisa R. Bugni
Lisa R. Bugni

Alston & Bird

Ms. Bugni’s practice focuses on a variety of securities litigation matters and other complex commercial and...  |  Read More

Gregory A. Markel
Gregory A. Markel

Cadwalader Wickersham & Taft

Mr. Markel is a nationally known trial lawyer who concentrates his practice on corporate governance litigation, mergers...  |  Read More

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