Attorney-Client Privilege in M&A Deals: Preserving and Controlling the Privilege

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

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Conducted on Thursday, February 21, 2019

Recorded event now available

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Course Materials

This CLE course will guide deal counsel in navigating the challenges of preserving and controlling the attorney-client privilege in 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 members of the transaction team, such as investment bankers and other financial advisers. 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 advisers and other third parties. Counsel advising deal parties must provide guidance on sharing information without waiving the privilege.

Delaware and New York case law apply the common interest doctrine--that information shared to promote a shared legal interest is privileged--to varying degrees. Counsel must understand the criteria and how courts may apply the doctrine if litigation arises after a deal is consummated.

Delaware generally recognizes that information shared with financial advisers is privileged if there is an expectation of confidentiality. Other states including New York take a more limited view. Counsel should consider steps to protect such information before retaining an investment bank or another adviser.

Regarding the question of who controls the privilege relating to deal negotiations, the New York Rule articulates an exception to the general rule that the attorney-client privilege transfers to new management at closing. Under the New York Rule, the privilege is retained by the seller after the consummation of the transaction. Care should be taken to draft choice of law provisions that yield the desired result.

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. Pre-closing privilege issues
    1. Common interest doctrine
    2. Waiver issues relating to financial advisers
  3. Post-closing privilege issues
  4. Privilege issues relating to transaction communications
  5. Best practices to preserve the privilege


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 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?


Bugni, Lisa
Lisa R. Bugni

King & Spalding

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

Markel, Gregory
Gregory A. Markel

Partner; Co-Head of Securities Litigation
Seyfarth Shaw

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

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