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March 2, 2011Bret Wells
New Schedule UTP: “Uncertain Tax Positions In the Age of Transparency”
A taxpayer, when signing the jurat on the tax return, swears under penalties of perjury that the tax return is true, accurate, and complete. But, as a general rule, the taxpayer need not have a subjective belief that the tax position taken on the tax return is sustainable when making this sworn statement. Furthermore, tax advisors need not believe that a tax position is ultimately sustainable before they advise the client to take a position on a tax return.
November 7, 2025Marissa Grabowski, Mark Schlackman
Protecting Attorney-Client Privilege in M&A Transactions
These are the presentation slides.
November 6, 2021John G. Browning
Real Legal Issues in a Virtual World: Electronic Communications and Virtual Meetings
In its U.S. Remote Work Survey published in January 2021, PriceWaterhouseCooper (PwC) concluded that “Remote work has been an overwhelming success for both employees and employers.” And while a return to work in- person remains a moving target for many businesses and the law firms representing them as vaccination rates fluctuate and COVID variants remain a concern, less than 20% of the business executives surveyed by PwC say they want to return to the office environment as it was before the pandemic. Yet even as businesses and law firms alike have embraced the benefits of virtual meetings and remote practice, there are important considerations. For lawyers, there are ethical ramifications that are part and parcel of the remote practice of law. In addition, there are evidentiary issues and other concerns for lawyers and their clients to be mindful of when it comes to the proliferation of new forms of electronic communications. Likewise, both attorneys and businesses have firsthand knowledge of the many things that can go wrong when you’re not careful in using virtual meeting platforms like Zoom. In this article, we will examine each of these areas and offer some best practices for working remotely, meeting virtually, and communicating electronically.
November 6, 2021Alicia F. Castro
Threading The Needle Between Disclosure And Attorney Client Privilege In M&A Transactions
As the Texas Supreme Court has noted, “the attorney-client privilege protects a relationship that is integral to the administration of justice as well as a government that functions for the benefit of the people.” However, it is not uncommon for it to be taken for granted, assuming elements of the privilege are met whenever a lawyer is involved in a communication. Both Texas state and federal case law make clear that is not the proper inquiry. 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. While these elements are generally well known and easily recited, the components of each element have nuances that are vital to practice business law. This article will discuss issues that arise in striking a balance between sellers preserving the privilege while providing appropriate and necessary disclosures in the M&A context. First, by providing an overview of the attorney-client privilege under Texas state law and federal common law, and then by adding typical examples of disclosure considerations that arise in an M&A transaction. Because a lawyer’s ethical obligations are another backdrop to any disclosure consideration, this article will summarize the pertinent Texas Disciplinary Rules of Professional Conduct as well. To a buyer in a transaction, there is value in obtaining disclosure from a seller. However, that value should be balanced with the risks of a potential privilege waiver that can ultimately inure to the buyer’s detriment. If challenged in subsequent litigation, the inquiry of whether a communication with counsel was made for the purpose of rendering legal advice can be fact intensive. In particular, the concept that counterparties with a common business interest can be simultaneously adverse yet aligned on some matters is an area that has been repeatedly misunderstood. By carefully communicating about matters where preserving the attorney-client privilege is important, and judiciously focusing only on the disclosure of facts, sellers’ counsel can balance preserving the attorney-client privilege while complying with disclosure obligations in M&A transactions. Likewise, by remaining mindful of the elements of the attorney-client privilege, buyers’ counsel can calibrate how disclosure is valued.
March 7, 2021Alicia F. Castro
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.
March 6, 2021Jeremy D. Rucker
Cybersecurity
Many attorneys explain their primary value through their wielding of the attorney-client privilege, by helping to cloak the cyber risk management process with the attorney-client privilege. While that can be helpful when done correctly, it is greatly underselling the real value that experienced legal counsel can add. When it comes to managing cyber risk, there is no substitute for experienced legal counsel.
March 14, 2019Shawn Tuma
Cybersecurity For Your Clients
Companies are beginning to understand that cyber is an overall business risk, not just a technical issue. Now they must realize that cyber is also a legal issue. The easiest way to understand why is to ask these two questions: “Why do we know about the data breaches of Target, Yahoo, Equifax, and all the others?” “Did those companies air their dirty laundry just because they believed it was the right thing to do?” Of course not! They did so because laws and regulations made them. Those laws and regulations require companies to disclose their breaches and mandate things such as who they must notify, when and how they must notify, what must be communicated, and what must be done for those who were impacted.
November 11, 2018Shawn Tuma
Cybersecurity
Companies are beginning to understand that cyber is an overall business risk, not just a technical issue. As these rules demonstrate, having data creates risk and one of legal counsel’s roles is to help companies manage that risk. To effectively manage cyber risk, companies must understand what their real cyber risk is.
November 21, 2015Wilson Chu
Preserving Privilege in Deals and Negotiations
These are the presentation slides.
November 2, 2012John E. Tschirhart
Preparing for (and Avoiding) Business Litigation
Litigation for a business client can come in many different kinds of matters and will occur in various forums. Regardless of when or from where the litigation might come, early preparation is possible and could provide a decisive advantage to one willing to take some basic steps before a dispute occurs. For example, consider some basic points about potential litigation. There are core areas from which business litigation may arise for any company. Your client’s consideration of these common risks and preparation for litigation are important to the effectiveness and cost of its response.
October 23, 2009Charles Henry (Hank) Still
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.