In-House Counsel and Attorney-Client Privilege

Protecting Confidential Business Information During Investigations, Discovery, Depositions and Litigation

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

Conducted on Wednesday, December 3, 2014

Recorded event now available

or call 1-800-926-7926
Program Materials

This CLE webinar will prepare in-house counsel to protect confidential business communications during investigations, discovery, depositions and litigation through the proper exercise of the attorney-client privilege.


The in-house attorney’s dual role as legal and business advisor to the corporation raises complex legal questions regarding conflicts of interest and the attorney-client privilege. A recent Delaware Supreme Court decision, Wal-Mart Stores Inc. v. Pension Trust Fund IBEW, illustrates the vulnerability of the attorney-client privilege, holding that the “fiduciary exception” to the privilege can override the confidentiality of business communications in certain circumstances.

To increase the likelihood of success in asserting the attorney-client privilege in investigations, discovery, depositions and future litigation, in-house counsel should carefully distinguish legal services from business advice in routine work matters. Counsel must also clearly indicate when acting in a professional legal capacity.

Once litigation has ensued, in-house counsel must make strategic determinations regarding which communications are potentially privileged and whether and how to invoke the privilege to protect those communications.

Listen as our panel of experienced practitioners explains how in-house counsel can distinguish between discoverable facts and privileged communications—and between business advice and legal advice. The panel will also provide strategies for supporting the application of the attorney-client privilege to certain communications.



  1. Business advice versus legal advice
  2. Discoverable facts versus privileged communications
  3. Proving that attorney-client privilege applies to certain communications
  4. Preparing in-house counsel for depositions


The panel will address these and other key issues:

  • What steps can in-house counsel take to attempt to preserve the attorney-client privilege in certain communications?
  • What are the limitations of and exceptions to attorney-client privilege?
  • How can discoverable facts and privileged communications be distinguished?
  • What are the best practices for in-house counsel to make distinctions between business advice and legal advice?
  • How can in-house counsel prepare to address the privilege issues that arise during depositions?


Hayes, Michael
Michael B. Hayes

Montgomery McCracken Walker & Rhoads

Mr. Hayes is a Partner at Montgomery McCracken, where his practice focuses on complex commercial litigation, internal...  |  Read More

Kenneth E. McKay
Kenneth E. McKay

Locke Lord

Mr. McKay has experience in a wide range of litigation areas. He concentrates on commercial litigation and real...  |  Read More

Bruce M. Sabados
Bruce M. Sabados

Katten Muchin Rosenman

Mr. Sabados concentrates his practice in complex commercial litigation, with an emphasis on securities and financial...  |  Read More

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