Bankruptcy: Attorney-Client Privilege and Work Product

Protecting and Maintaining Confidentiality and the Work Product Defense

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

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Conducted on Thursday, September 30, 2010

Recorded event now available

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Course Materials

This CLE course will provide guidance for bankruptcy counsel on the implications of the attorney-client privilege for stakeholders in the bankruptcy process—debtors, creditors, committees and professionals. The panel will discuss legal strategies for preserving the privilege and leveraging the work product defense.


In an evolving bankruptcy landscape, attorney-client privilege issues can be complex and tricky. It is critical that bankruptcy counsel understand how their actions impact the privilege and the work product defense throughout the various stages of the bankruptcy process.

One critical attorney-client privilege issue concerns the bankruptcy trustee's right to assert or waive the privilege. Continuing litigation long after plan reorganization or liquidation raises complicated privilege and work product challenges for litigation trustees.

Other issues include exceptions to the waiver-by-disclosure rule for communication with accountants and other professionals as well as in joint representation or common interest situations. The common interest privilege also extends to official creditors' committee representation.

Listen as our authoritative panel of attorneys discusses the complex attorney-client privilege and work product issues that arise during the course of bankruptcy and best practices for protecting and maintaining the privilege and the work product defense.



  1. Attorney client privilege scenarios
    1. Advising management and boards of directors prior to bankruptcy
    2. Settlement negotiations between debtors and creditors
    3. Parent/subsidiary relationship
    4. Litigation trustees
    5. Protecting business plans and valuation.
  2. Waiver issues
    1. Communications with accountants and other professionals
    2. Common interest or joint representation
  3. Official creditors' committee representation


The panel will review these and other key questions:

  • What party holds the attorney-client privilege once a Chapter 11 petition has been filed?
  • Can communications with creditors' committee counsel in furtherance of settlement discussions be protected?
  • Under what circumstances can attorney communications be shared with accountants or other bankruptcy professionals without waiving the privilege?
  • How has the common interest privilege rule been applied in the context of official creditors' committee communications?


Gregory W. Werkheiser
Gregory W. Werkheiser

Morris Nichols Arsht & Tunnell

He has substantial experience representing debtors and creditors in bankruptcy and out-of-court restructurings. He...  |  Read More

Ronald R. Sussman
Ronald R. Sussman


He has successfully handled numerous contested bankruptcy matters on behalf of creditor committees, employee, other...  |  Read More

Alec P. Ostrow
Alec P. Ostrow

Becker Glynn Melamed & Muffly

He has served as lead counsel for many businesses that successfully reorganized in chapter 11 or in out-of-court...  |  Read More

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