Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Tag Archives: Attorney-Client Privilege

Margaret Dale Explores Ways to Protect Privilege After Data Breach

Proskauer’s Vice-Chair of the Litigation Department and Minding Your Business blog editor, Margaret Dale was recently featured on Thomson Reuters’ Practical Law, where she explores ways that clients can protect privilege after a data breach. The first, “Protecting Privilege Basics,” identifies steps that can be taken by an organization to maximize the ability to successfully … Continue Reading

Florida’s Fiduciary Lawyer-Client Privilege Adopted by the Florida Supreme Court

Last week, the Florida Supreme Court adopted section 90.5021, Fla. Stat. – Florida’s fiduciary lawyer-client privilege – to the extent it is procedural and held that the decision is retroactive to the Florida legislature’s enactment of the statute in 2011. The statute provides for application of the lawyer-client privilege when that client is a fiduciary, … Continue Reading

Florida’s Fiduciary Lawyer-Client Privilege is on the Books, But is it Good Law?

In 2011, Florida’s legislature enacted section 90.5021, Fla. Stat., which provides for application of the lawyer-client privilege – even when the client is a fiduciary. Specifically, the statute protects communications between a lawyer, on the one hand, and a client who is a trustee, personal representative or executor, or guardian, on the other hand. The … Continue Reading

Who’s the “Real Client”? Attorney-Client Privilege Between Firm In-House Counsel And Other Firm Lawyers

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 … Continue Reading

Choice of Law Principles in Cross-Border Privilege Disputes: Whose Law Applies?

I. The Attorney-Client Privilege and Work Product Doctrine in the United States and Abroad The attorney-client privilege and work product doctrine are important and well-known concepts to nearly every lawyer in the United States. Generally, the attorney-client privilege shields from disclosure confidential communications between attorneys and clients for the purpose of seeking or rendering legal … Continue Reading

New York’s Highest Court Refuses to Expand the Common Interest Doctrine to Merging Parties

Last Thursday, the New York Court of Appeals issued a stark reminder to transactional lawyers: no matter how much “common interest” two parties may have with respect to a transaction, the common interest doctrine may not protect their communications. In Ambac Assurance Corp. v. Countrywide Home Loans, Inc., New York’s highest court held, in a … Continue Reading

The Most Overlooked Exception to Attorney-Client Privilege

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 … Continue Reading
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