BarbriSFCourseDetails
  • videocam On-Demand
  • signal_cellular_alt Intermediate
  • card_travel Class Action and Other Litigation
  • schedule 90 minutes

Exceptions to Attorney-Client Privilege: Avoiding Surprises and Piercing Invalid Claims of Privilege

$297.00

This course is $0 with these passes:

CLE
ALL
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Description

The attorney-client privilege protects confidential information conveyed for the purpose of seeking or rendering legal advice. Although broad, the privilege has several exceptions, i.e. circumstances in which attorneys are free to, are required to, or can be compelled to disclose otherwise privileged communications. Nothing will change the course of representation like finding out that "privileged" information is not actually privileged.

Exceptions include the crime-fraud exception, the fiduciary exception, when a suit is filed against a former attorney, internal communications with in-house counsel, and more. That exceptions can be easily or succinctly stated belies their complexity, especially in the context of enterprise clients. Some of these exceptions may be broader than attorneys realize, and some have been expanding.

The crime-fraud exception, for example, has been stretched by some courts and arguably by the Restatement (Third) of Law Governing Lawyers Section 82 comt. d (2000) to include advice beyond fraud, including business torts such as interference with business relations or breach of fiduciary duty. ABA Model Rule 1.16 and Formal Opinion 513 (2024) also address this exception.

Listen as this panel of experienced attorneys helps counsel understand, recognize, and navigate the exceptions to the attorney-client privilege.

Presented By

Caroline E. Bressman
Attorney
Cohen Milstein Sellers & Toll PLLC

Ms. Bressman represents the interests of employees, retirees, plan participants, and beneficiaries in ERISA class action lawsuits across the country. Prior to joining Cohen Milstein, she was an associate at a highly regarded national plaintiffs’ law firm, where she represented clients in employee benefits/ERISA and employment law class actions. Ms. Bressman  is an adjunct faculty member at the University of Minnesota Law School, where she teaches a Law in Practice course. She also speaks frequently on ERISA, wage theft and employment law topics in continuing legal education programs. 

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Vincent Montalto
Partner, Co-Chair, Affirmative Litigation Group
DLA Piper LLP US

Mr. Montalto is a seasoned litigator, smart advocate, creative business partner, and trusted legal advisor with over a decade of experience. His practice focuses on defense of environmental and mass tort claims, employment discrimination cases, and commercial cases at both the state and federal levels. On the corporate side, Mr. Montalto advises on litigation funding related NDAs, term sheets, litigation funding/finance agreements, and side letters to secure financial arrangements. He serves as the co-leader of the firm's Affirmative Litigation practice and is a member of the PFAS Task Force.

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Credit Information

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


  • Live Online


    On Demand

Date + Time

  • event

    Tuesday, February 25, 2025

  • schedule

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

  1. Overview of attorney-client privilege
  2. Exceptions
    1. Crime-fraud exception
      1. Impact of ABA Model Rule 1.16 and Formal Opinion 513
      2. Duty of disclosure
    2. Fiduciary exception
      1. Garner doctrine
      2. Beyond derivative suits
      3. Special Litigation Committee Reports
      4. Internal communications with in-house counsel
    3. Wills and estates matters
    4. Suits against former attorneys
    5. The "at issue" waiver: advice of counsel defense
    6. Implied waiver: some jurisdictions find that simply opposing a claim of bad faith waives privilege

The panel will review these and other key issues:

  • What is the difference between an exception to the attorney-client privilege and an exception to the waiver of attorney-client privilege, if any?
  • What constitutes adequate due diligence under Model Rul 1.16(a), and what happens if adequate diligence still does not prevent a client from abusing the attorney-client privilege?
  • What is the scope of an exception?