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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Tuesday, October 11, 2022

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will seek to comprehensively address the issue of “mixed” or “dual-purpose” communications between clients and counsel. The CLE panel will survey the states’ different approaches to the issue, discuss key federal court decisions on the topic, and apply these state and federal law principles to contexts where the question of dual-purpose communication commonly arises.

Faculty

Bradley R. Hutter
Shareholder
Fafinski Mark & Johnson, PA

Mr. Hutter represents business clients in litigation arising out of complex commercial transactions, fiduciary relationships, and business insolvencies. He has represented a diverse set of clients from the banking, real estate, retail, transportation, construction, and aviation industries. Mr. Hutter’s experience includes defending multiple-plaintiff and putative class action claims in federal court. He is a former Assistant Attorney General in the Minnesota Attorney General’s Office and draws on this experience to advise businesses facing enforcement actions or investigations, as well as clients considering affirmative litigation against the government. He also brings his government experience to bear when clients find themselves in business disputes that are made riskier or more complicated by a regulatory or administrative law issue. Mr. Hutter is also a co-leader of FMJ’s E-Discovery practice group.

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Ernest Shriver
Shareholder
Fafinski Mark & Johnson, PA

Mr. Shriver is a corporate, transactional and intellectual property attorney, focusing on small to medium sized privately-held businesses. His practice includes advising clients on choice of entity, general corporate and partnership matters, commercial matters (contract drafting, review and advice), shareholder and partner relations (shareholder, partnership, and “buy/sell” agreements), securities and other corporate financing, business combination matters (including mergers, asset and stock purchases, and other similar business combinations), and intellectual property issues. Mr. Shriver also works with regulated and unregulated lenders with regard to commercial lending and financing transactions, including secured and unsecured lending.

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Description

Most business clients expect their lawyers to serve as business advisors as well as legal advisors. In today’s competitive legal market, most lawyers are eager to oblige them. But meeting this client expectation is not without its perils. By mixing business advice or information into legal communications, lawyers or their clients may turn those communications into “dual-purpose” documents, thereby jeopardizing their privileged status.

The issue of “dual-purpose” or “mixed” documents and communications is being litigated with more frequency, and it affects litigators and transactional attorneys alike. As transactional lawyers communicate with clients outside of litigation or in pre-litigation contexts, they must understand and abide by the rules that courts will apply as they assess privilege claims over those communications in subsequent litigation. When litigating privilege claims over such communications, litigators must understand the decisive arguments that have persuaded courts to withhold or disclose dual-purpose documents in past cases.

Listen as this esteemed panel guides lawyers through how to identify dual-purpose communications, discusses state court approaches to applying the attorney-client privilege, reviews the existing methods and variations used in federal court and the current circuit split, and then offers a roadmap for litigators.

Outline

  1. State law survey. The panel will identify differences in the states’ approaches to “dual-purpose” communications.
  2. Key federal court decisions. The panel will discuss key federal court decisions applying federal common law under FRE 501, including the potential circuit split on the issue.
  3. Industry and context-specific application of key principles. The panel will apply these principles to in-house, transactional, pre-litigation, and litigation contexts.

Benefits

The panel will discuss these and other key issues:

  • How do courts in my state analyze privilege claims over dual-purpose documents?
  • What rules do federal courts in my circuit apply to dual-purpose documents in cases where federal common law controls under FRE 501?
  • What are best practices for in-house attorneys, who are enmeshed in the day-to-day business affairs of their companies, to ensure that their communications with colleagues remain privileged?
  • What are the most persuasive arguments and approaches for litigators seeking to withhold or compel disclosure of a dual-purpose document?