Attorney-Client Privilege in M&A Deals: Ethics, Best Practices, and Traps for the Unwary

About the Course

Introduction

This CLE course will examine the developing body of case law on who controls the privilege when litigation arises after a deal has closed and the implications for M&A practitioners.

Description

Attorney-client privilege issues abound in M&A transactions due to the disclosure of sensitive information between prospective deal parties during due diligence and negotiations, as well as the disclosure of deal-related documents to financial advisers and other third parties.

Accordingly, counsel advising deal parties should familiarize themselves with how privilege operates in a deal setting, including risks of privilege waiver.

Our panel will guide deal counsel in navigating the challenges of recognizing and effectively addressing the attorney-client privilege in M&A transactions. The panel will discuss when and how the attorney-client privilege is implicated in communications between prospective deal parties and members of the transaction team, such as investment bankers and other financial advisers.

Listen as our authoritative panel of attorneys examines current issues surrounding the attorney-client privilege in the context of M&A deals, including who holds the privilege, how it can be waived, and how to shield the information. In addition, the panel will discuss their insights and best practices to preserve and control the privilege.

Credit Information

This 90-minute webinar is eligible in most states for 1.5 CLE credits.
An excellent opportunity to earn Ethics CLE credits. Note: BARBRI cannot guarantee that this course will be approved for ethics credits in all states. To confirm, please contact our CLE department at pdservice@barbri.com.
Choose a State

Live Online

On Demand

Date + Time

event
Wednesday, December 16, 2026
schedule
1:00 PM ET/10:00 AM PT

I. Attorney-client Privilege as an evidentiary rule vs. ethical confidentiality as defined under ABA Model Rule 1.6

II. Duty of confidentiality, client identification, and the organizational client: Dealing with clients, their staff, and the myriad of client advisors (ABA Model Rule 1.13)

III. Overview of attorney-client privilege issues in the context of M&A

IV. Pre-closing privilege issues

A. Common interest doctrine

B. Waiver issues relating to financial advisers

V. Post-closing privilege issues

VI. Privilege issues relating to transaction communications

VII. Best practices to preserve the privilege

The panel will review these and other key issues:

What lessons do recent court rulings offer M&A counsel in developing best practices and advising deal parties to protect privileged communications?
In what circumstances can counsel assert the privilege—and how can counsel navigate the gray areas?
How does the common interest doctrine factor into assessing privilege protection when litigation ensues post-closing?