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Privilege
Can Non-Practicing Lawyers Ever Deserve Privilege Protection?
Thomas Spahn, partner with McGuireWoods, returns with a new privilege point. The attorney-client privilege rests on a grand societal purpose — encouraging clients to safely share with their lawyers all the pertinent facts, so lawyers can guide them in a lawful direction. This is the same societal purpose underlying lawyers’ confidentiality duty.
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Courts Point to Several Factors in Addressing The “Primary Purpose” Privilege Standard
Nearly every court protects as privileged only those communications or documents whose “primary purpose” was for the clients to request legal advice or the lawyers to provide the requested legal advice. A few courts have taken a more liberal “one significant purpose” approach, but that favorable doctrine has not widely taken root.
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Accountants Implicate Subtle Privilege and Work Product Issues: Part II
Last week’s Privilege Point described a case applying the generally-accepted view that accountants assisting clients rather than the clients’ lawyers are outside privilege protection -- so copying them on privileged emails waives that fragile protection. An equally well-settled rule is just the opposite on the work product side -- disclosing protected work product to a non-adverse accountant does not waive that robust protection.
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Accountants Implicate Subtle Privilege and Work Product Issues: Part I
Accountants can help clients and clients’ lawyers – in ordinary business transactions, in explaining complex issues to lawyers who are giving legal advice, and in litigation. These differing roles at different times can trigger complicated attorney-client privilege and work product doctrine analyses.
Read MoreInternal Corporate Investigations May Deserve Work Product Protection If They Differ From The Corporation's Normal Procedures: Part II
The previous Privilege Point described a court's finding that the work product doctrine protected a corporation's investigation of a gender and age discrimination claim -- because the investigation was neither "routine nor ordinary." Heckman v. TransCanada USA Services, Inc., Civ. A. No. 3:18-CV-00375, 2020 U.S. Dist. LEXIS 7293 (S.D. Tex. Jan. 13, 2020). Here, pick up where it left off.
Read MoreCourts Agree That Historical Facts Do Not Deserve Privilege Protection, But What If Those Come From A Lawyer?
Historical facts do not deserve privilege protection – something either happened or it didn't happen. The attorney-client privilege protects communications about those facts. But surprisingly few courts have dealt with what would seem to be a common scenario – clients asked during a deposition about historical facts they obtained only from their lawyer.
Read MoreAnswering Clients’ Questions About COVID-19 Relief
When the coronavirus pandemic hit the U.S. in February, McGuireWoods swiftly established a Response Team to answer their clients’ most pressing business questions.
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