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Protecting Attorney-Client Privilege in M&A Transactions
These are the presentation slides.
Attorney-Client Privilege Issue for Working with In-House Counsel
The elements of the attorney-client privilege in Texas are (1) a confidential communication; (2) made for the purpose of facilitating the rendition of professional legal services; (3) between or amongst the client, lawyer and their representatives; and (4) the privilege has not been waived. Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996); Tex. R. Evid. 503(b). While these elements are generally well known and easily recited, the components of each element have nuances that are vital to understanding in the practice of business law. This article will discuss practical issues that arise in drawing the line between what is a communication “made for the purpose of facilitating the rendition of professional legal services,” as opposed to myriad other purposes. While the answer may seem simple with respect to outside counsel, it is not uncommon for a company’s in-house counsel to wear multiple hats. For example, what happens when the in-house counsel is also the head of human resources? What happens when a whistleblower reaches out to a company hotline monitored by the legal department, or when two nonlawyer employees discuss the need for legal advice? What happens when a company’s auditor, to certify the company’s financial statements, asks for information that wades into the pools of attorney-client privilege and attorney work product, and what waiver issues must the company consider? This article will provide a review of some of the salient case law and practical considerations involved in each of these questions. Lastly, this article will provide an overview of some differences in how courts approach privilege issues when the asserted privilege concerns a communication with in-house counsel, compared to outside counsel. Ultimately, the privileged nature of a communication is not something to be taken for granted. While courts in Texas have declined to apply a presumption regarding in-house counsel, in practice the evidentiary questions that a privilege challenge can bring underscore the importance of clearly documenting the purpose of any in-house led inquiry, investigation or project.
Preserving Privilege in Deals Negotiations
This presentation applies the attorney-client privilege relating to confidential communications to deal negotiations and disputes after the deal. There are practical options for protecting the privilege during due diligence. And, while there are questions concerning who controls the privilege post closing, there are strategies for putting the control in your client's hands. .
Corporate Attorney/Client Privilege
According to the American Law Institute’s Restatement of Law Governing Lawyers (Third) (2000) (the “Restatement”), the attorney/client privilege is comprised of four elements: (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance to the client. (Restatement Sec. 68). Section 73 of the Restatement covers the Privilege for an Organizational Client.
Attorney-Client Privilege and Work Product Doctrine and Responses to Auditor Requests for Information
Analyzing whether communications between an attorney and client are subject to discovery in litigation, including a criminal and/or enforcement proceeding and shareholder derivative litigation, requires an analysis of two separate and distinct legal doctrines: attorney-client privilege and the "work-product" doctrine.
Protecting Attorney-Client Privilege in M&A Transactions
This is Part Two of a multi-part presentation that was created specifically for the Business Law Section.
Your AI Chatbot is Not Your Lawyer
This is a short video presentation about attorney-client privilege and work product privilege in connection with AI chatbots.