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Showing 7 posts in Attorney Client Privilege.

In-Firm Privilege: Lawyers Have Legal Problems Too

For many years in the modern era of law firms, a few federal district court decisions starting in the 1980s set forth the notion that lawyers and law firms could not invoke the attorney-client privilege to shelter communications with their lawyers about their legal problems from the lawyers’ clients. Since that time, law firms have grown tremendously in size, scope, and complexity, making such an approach a thorn in the side of law firms’ in-house counsel.

Fortunately, since 2011, there has been an unbroken string of well-reasoned opinions deciding that the cases holding against the in-firm privilege were in fact mistaken. The supreme courts of Massachusetts, Georgia, Oregon, California, and New York have now upheld the rights of lawyers to get privileged legal advice, as have intermediate appellate courts or federal district courts in Illinois, Ohio, and California. More ›

Arizona's Mediation Process Privilege Bars Malpractice Allegations

In its September 22, 2015 opinion in Grubaugh v. Blomo ex rel. Cnty. of Maricopa, No. 1 CA-SA 15-0012, 2015 WL 5562347, the Court of Appeals of Arizona held that the state’s mediation process privilege was not waived when plaintiff sued her attorney for malpractice arising out of alleged substandard advice given during a family court mediation. In addition, the court held that any of plaintiff’s allegations that were dependent upon privileged information should be stricken from the complaint. This case follows a number of others across the country that have been criticized for insulating attorneys from liability for their actions during the course of mediation. More ›

Don't let the Investigators get you down: The Ethics of Representing a Client During a Law Enforcement Investigation

Lawyers Behind BarsIt can be dangerous work representing a client during a law enforcement investigation. Tired of the burden of proving allegations of wrongdoing, many law enforcement agencies have recently turned to punishing the defense of the allegations. Targeting both inside and outside counsel, enforcement agencies sometimes seek disciplinary action or even institute criminal proceedings against counsel who did nothing more than represent their client. More ›

Illinois Joins 4 States in Adopting Federal Rule of Evidence 502(d)

In 2013, Illinois joined Arizona, Indiana, Iowa and Washington in adopting paragraph d of Federal Rule of Evidence (FRE) 502 which protects disclosure of privileged information, if made pursuant to a court order, from operating as a waiver in any other proceeding. More ›

California Court of Appeal Decision Rejects Fiduciary Exception to Attorney-Client Privilege, but Raises new Questions

On November 25, 2014, in the decision Edwards Wildman Palmer v. Superior Court of Los Angeles County (No. B255182), discussed in an earlier blog post, the California Court of Appeal delivered an excellent, bright-line opinion, protecting discussions between firm members and their in-house general counsel, relating to possible liability, including methods of dealing with a complaint or claim made by current client of the firm. This question has been a moving target for California law firms for many years. More ›

LFP Alert — Under Dual Representation Doctrine, Attorney-Client Privilege Generally Does Not Apply to Communications Related to Matters on Which the Attorney Represents Both Clients

Bill Daily and Cardiothoracic Surgery Associates v. Greensfelder, Hemker & Gale, P.C., 2014 IL App (5th) 130273-U.

An Illinois appellate court found that the dual representation doctrine (or the common representation exception to the attorney-client privilege) applied with respect to the production of a law firm's file. More ›

LFP Alert — Insurer Ordered to Produce Communications With its Counsel Regarding Settlement of Bad Faith Claim, Which Led to Legal Malpractice Action Against Defense Counsel

Imperial Fire & Cas. Ins. Co. v. Warman, U.S. Dist Ct., N.D.Okla., 2014 WL 3671327 (2014)

In a legal malpractice action filed by an insurer against defense counsel it retained to defend an underlying auto accident case, which then led to a bad faith claim against the insurer which was settled, the district court ordered the insurer to produce all communications with its attorneys regarding the bad faith case, finding that the insurer placed such communications at issue by suing defense counsel for malpractice.  More ›