Photo of Jacki L. Anderson

When we think of clouds, we likely picture cumulus, stratus, and cirrus ones, not the type of “cloud” that holds data and software. The latter type of cloud is generally controlled by a third-party service provider and is used to store and transmit information in a shared environment. The use of clouds is ever-increasing, including by attorneys. This wide-spread use has prompted recent Illinois State Bar Association’s Professional Conduct Advisory Opinion Number 16-06 (the “Opinion”), which details attorneys’ obligations when using a cloud, which is allowed in Illinois.

While attorneys provide legal advice to their clients, they are sometimes the recipients of such advice from their own counsel, including in-house firm counsel. Agreeing with recent decisions by the highest courts of Georgia and Massachusetts, a panel of the First Department Appellate Division this June handed down a decision declaring such advice protected by the attorney-client privilege. See Stock v. Schnader Harrison Segal & Lewis LLP.

In-house counsel often communicate with corporate management under the assumption that these communications are protected by the attorney-client privilege— absent some type of unusual and extraordinary circumstance, such as waiver of the privilege or the crime-fraud exception. A surprising number of both in-house and outside counsel, however, are unfamiliar with the longstanding “fiduciary exception” to the attorney-client privilege. Forty-five years ago, in Garner v. Wolfinbarger, the Fifth Circuit allowed the attorney-client privilege of a corporation to be pierced by the corporation’s shareholders upon a showing of “good cause.” While some courts have rejected this approach, a New York appellate court recently joined other courts, including the Delaware Supreme Court (see Wal-mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund) in adopting it.