Asserting Attorney-Client Privilege When Affiliated Entities' Interests Diverge: Common Interest Doctrine
Navigating the Complexities of Joint Representation During Litigation, Spinoffs, Acquisitions, or Insolvency
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Corporate Law
- event Date
Thursday, May 11, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will guide corporate counsel in addressing attorney-client privilege challenges that arise when the common interests of corporations and their affiliates or subsidiaries diverge, focusing specifically on best practices for preserving the privilege and structuring privileged communications. The panel will identify potential joint representation pitfalls and discuss tips to avoid or navigate waiver of privilege issues when they occur.
Mr. Duvall’s practice primarily focuses on business litigation, financial, insurance, and construction matters. He also has experience in product liability, white collar, securities, class action, intellectual property, employment, consumer, and appellate matters. Mr. Duvall has authored a number of scholarly articles and works, including co-authoring three legal reference guides: Wolters Kluwer's Product Liability Desk Reference: A Fifty State Compendium; Wolters Kluwer's Business Torts: A Fifty State Guide; and Criminal Law Handbook (for Kansas).
Mr. Whittaker is an experienced federal and state trial lawyer with over two decades of handling high-stakes complex business/commercial litigation. He focuses on a multitude of subject matter areas including agribusiness, banking/lender liability, complex real estate matters, contract disputes, construction disputes, employment related matters, negligent misrepresentation and fraud, partnership and shareholder disputes, trade secret and unfair competition, and a wide variety of other commercial business disputes. He has also serves as a devoted legal advisor for private businesses and governmental agencies. Additionally, Mr. Whittaker has significant experience handling binding arbitrations and has successfully resolved many complex disputes through other alternative dispute resolution processes, such as early neutral evaluation programs and pre-litigation mediation. As a recognized and respected mediator himself, Mr. Whittaker has handled hundreds of mediations as a neutral during his career.
Mr. Rose provides IP counseling and patent preparation and prosecution in niche subject matter areas of media processing and delivery, artificial intelligence and machine learning (including big data analysis, financial technologies, bioinformatics and diagnostic systems), networking telecommunications, blockchain algorithms, and cyber security. He has advised companies ranging from NASDAQ 100-listed multinationals to basement startups, and provides advice on domestic and international patent portfolio development, infringement and patentability opinions, post-grant proceedings before the USPTO and IP diligence for mergers and acquisitions. Mr. Rose also provides business intelligence and analysis based on domestic and foreign filing patterns of leading industry competitors. He is an avid educator and author on patent jurisprudence, and has conducted presentations on software patentability as part of continuing legal education for in-house counsel and private attorneys and at software industry conventions to engineers and developers.
An attorney for a parent corporation generally advises its subsidiaries or affiliates as well. The primary concern for counsel is whether and how attorney-client privilege can be asserted when the affiliated entities' interests become adverse for a variety of reasons, including, but not limited to, litigation between or involving the parent and subsidiary, inorganic growth of one of the entities, or initiation of bankruptcy or insolvency proceedings. How should counsel approach joint representation in the event of a conflict of interest? If counsel proceeds with joint representation, how should that representation be defined? When is separate counsel necessary?
Further, inorganic growth, including, but not limited to, spin-offs, mergers, or acquisitions, presents unique challenges to counsel representing new or divested corporate entities, both through the pendency of the deal transaction and post-closing. In order to avoid the additional cost of production and risk of privilege waiver, counsel needs to consider when and how to contractually transfer privilege rights or how to effectively negotiate provisions around pre-merger client communications.
Listen as our authoritative panel discusses best practices for navigating and resolving attorney-client privilege issues that arise when the common interests of parent corporations and their affiliates or subsidiaries become adverse.
- Principles governing privilege and confidentiality in joint representation of affiliated companies
- Attorney-client privilege in joint representation of affiliated companies: latest case developments
- Best practices for preserving privilege when interests diverge
The panel will review these and other key issues:
- What situations typically cause a parent corporation's interests to diverge from the interests of its affiliates or subsidiaries?
- What are the scenarios in which attorney-client privilege may be challenged, and how can counsel minimize the risk of privilege waiver in these instances?
- What are some best practices for corporate counsel to preserve the privilege when the interests of corporate affiliates or subsidiaries diverge from those of the parent?
