SEC Condemns Breach Of Client Confidences While Offering Possible Bounties For Breaches

Yesterday, the Securities and Exchange Commission announced that it had “charged a California-based attorney and his wife with insider trading on confidential information obtained from a corporate client.”  According to the SEC’s complaint, the attorney had tipped material non-public information concerning a client, Spectrum Pharmaceuticals, Inc., to his spouse.  According to the SEC’s complaint, the attorney

Attorney-Client privilege In M&A Transactions

The title of this recent law review article frames the problem well, At the Whim of Your Adversaries: California’s Hazards in Sell-Side Representation and Waiver of Attorney-Client Privilege, 54 Santa Clara L. Rev. 651 (2014).  In this article, the authors, practicing attorneys Mattia V. Murawski and Brian R. Wilson, argue for an amendment to the California Evidence Code

Why Keeping Corporate Lawyers Quiet Is Good For Us All

In a recent post in The New York Times DealBook, Berkeley Law School Professor Steven Davidoff Solomon argues that keeping corporate lawyers silent “can shelter wrongdoing”.  I completely agree that the attorney-client privilege limits society’s access to information.   If access to information is the only societal value to be considered, then the attorney-client privilege should be abolished forthwith.  Other societal

Insurer Claims Attorney-Client Privilege Of Third Parties Prohibits Disclosure To Its Own Attorneys

At first, this case seems somewhat pedestrian – a lawyer sues her erstwhile law firm for employment discrimination.  But then things get complicated.  It turns out that the lawyer was employed by a law firm that was employed by an insurer to represent its insureds.  When the lawyer served a request for production of documents, the insurer

Former Executive Has No Right To Possess A-C Privileged Documents

Suppose that a corporation terminates its president and chief executive officer who then sues for breach of his employment contract.  Does the former executive officer have a right to access and use materials subject to the attorney-client privilege that were created during his tenure with the corporation?  If so, what would be the theory? In

Delaware Likes Garner/California Not So Much

In 1970, Richard Nixon was president, the 26th Amendment was still not part of the Constitution, and the Fifth Circuit Court of Appeals issued its opinion in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970).  In that case, Judge Godbold wrote: The attorney-client privilege still has viability for the corporate client.  The corporation is

Do You Want Your Lawyer To Be Horatius Or Atticus Finch?

I was profoundly disheartened by these recent remarks by SEC Commissioner Kara M. Stein: Are we treating lawyers differently from other gatekeepers, such as accountants?  I think we should carefully review the role that lawyers play in our markets, with a view towards how they can better help deter misconduct and prevent fraud. We should be

Federal Court Applies California Privilege Law To Delaware Corporation

Lawyers often speak of the attorney-client privilege in the singular as if there is only one privilege.  Given the multiplicity of fora in which actions may be brought, it is best to think in the plural.  There are many versions of the attorney-client privilege and the one that is applied to your case may not be the one that

This Interest May Be Common, But It’s Still Privileged

Section 954 of the California Evidence Code establishes a privilege “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer”.  A “confidential communication between client and lawyer” is defined in Section 952 of the Evidence Code.  Under that statute, the presence of third persons does not result always

More On Asset Sales And The Attorney-Client Privilege

Last week, I dipped a toe into the difficult topic of what happens to the attorney-client privilege in merger and acquisition transactions.  In that post, I framed a definitional question – is the attorney-client privilege an asset?  If the attorney-client privilege is an asset, an agreement that purports to transfer all of a seller’s assets would