End the Experiment: The Attorney-Client Privilege Should Not Protect Communications in the Allied Lawyer Setting

In recent years, courts have seen an explosion of claims that communications need not be disclosed because they enjoy the protection of something often referred to as the “common interest doctrine.” These claims—claims of attorney–client privilege—occur in two situations: the joint client setting and the allied lawyer setting. In a joint client situation, an attorney represents two or more clients on a matter with all parties working together on the joint endeavor. In an allied lawyer situation, several entities or individuals work together on a matter of common interest but the parties have separate lawyers. This Article argues, uncontroversially, that the privilege should continue to apply to communications in the joint client situation. In contrast, this Article argues, quite controversially, that communications in the allied lawyer setting should not enjoy the protection of the privilege. Applying the privilege to the joint client setting is simply applying the privilege to communications between an attorney and that attorney’s clients—clients who have engaged the attorney to represent them jointly. Applying the privilege furthers the rationale of the privilege. When the privilege is applied in the allied lawyer setting, however, the privilege protects communications that are not between an attorney and that attorney’s client. The application does not further the privilege’s rationale. In addition, the confusion surrounding the application of the privilege in this setting has eviscerated the certainty necessary for the privilege to accomplish any goal. Any possible benefit to the application is outweighed by the damage done to the truth-finding mission of the justice system. Applying the privilege in the allied lawyer setting is a practice based on a flawed precedent from 1871 and followed by courts only in recent decades. It is a practice that should not continue

Control of the Attorney-Client Privilege After Mergers and Other Transformational Transactions: Should Control of the Privilege Be Alienable by Contract?

In recent years, parties to mergers and other transformational transactions have begun inserting into their deal documents provisions allocating post-transaction control of the attorney-client privilege for pretransaction communications. The controller of the privilege is the person or entity who decides whether to assert the privilege or, rather, to waive it. Commonly, representatives of the target entity in a merger or representatives of an asset seller in a transformational sale want post-transaction control of the privilege for pre-transaction communications relating to the transaction. They want control of the privilege so the surviving entity cannot access or use those communications against the pre-transaction representatives in post-transaction litigation. Though contractual privilege allocation provisions are now common in transformational transactions, the question of whether these provisions should be enforceable has garnered little attention. If the attorney-client privilege were an asset such as a piece of equipment, there would be no question that the asset could be allocated by contract. But the attorney-client privilege is not a typical asset; it represents a careful balance of public goals and policy and as such is not an asset of any one actor. The precise bounds of the privilege are set by courts and legislatures. They have determined the balance of the societal interest in a justice system that effectively and efficiently finds the truth and the secondary but important interest behind the privilege in assuring that clients fully disclose all matters to their attorneys so that they can have the best possible representation and abide within the law. When private parties contract to allocate control of the privilege, those parties contract to maximize their collective good, but in doing so they are resetting the bounds of the privilege in a way that overrules the balance set so carefully by courts and legislatures—a balance set with full consideration of societal interests. When dealing with claims of privilege based on common interest, courts have not allowed parties to dictate the existence of a common interest if, in fact, no common interest as determined by the court, exists. These courts have not allowed parties to reshape the privilege by contract. Similarly, control of the privilege for an entity should not be contractually alienable apart from control of an entity. As courts refuse to honor contractual extensions of statutes of limitations before a cause of action accrues because of the public interest at issue, so too should courts refuse to enforce contractual privilege allocation provisions. Control of the privilege for an entity should not be contractually alienable apart from control of the entity

Control of the Attorney-Client Privilege after Mergers and Other Transformational Transactions: Should Control of the Privilege Be Alienable by Contract?

In recent years, parties to mergers and other transformational transactions have begun inserting into their deal documents provisions allocating post-transaction control of the attorney-client privilege for pretransaction communications. The controller of the privilege is the person or entity who decides whether to assert the privilege or, rather, to waive it. Commonly, representatives of the target entity in a merger or representatives of an asset seller in a transformational sale want post-transaction control of the privilege for pre-transaction communications relating to the transaction. They want control of the privilege so the surviving entity cannot access or use those communications against the pre-transaction representatives in post-transaction litigation. Though contractual privilege allocation provisions are now common in transformational transactions, the question of whether these provisions should be enforceable has garnered little attention. If the attorney-client privilege were an asset such as a piece of equipment, there would be no question that the asset could be allocated by contract. But the attorney-client privilege is not a typical asset; it represents a careful balance of public goals and policy and as such is not an asset of any one actor. The precise bounds of the privilege are set by courts and legislatures. They have determined the balance of the societal interest in a justice system that effectively and efficiently finds the truth and the secondary but important interest behind the privilege in assuring that clients fully disclose all matters to their attorneys so that they can have the best possible representation and abide within the law. When private parties contract to allocate control of the privilege, those parties contract to maximize their collective good, but in doing so they are resetting the bounds of the privilege in a way that overrules the balance set so carefully by courts and legislatures—a balance set with full consideration of societal interests. When dealing with claims of privilege based on common interest, courts have not allowed parties to dictate the existence of a common interest if, in fact, no common interest as determined by the court, exists. These courts have not allowed parties to reshape the privilege by contract. Similarly, control of the privilege for an entity should not be contractually alienable apart from control of an entity. As courts refuse to honor contractual extensions of statutes of limitations before a cause of action accrues because of the public interest at issue, so too should courts refuse to enforce contractual privilege allocation provisions. Control of the privilege for an entity should not be contractually alienable apart from control of the entity

Client responsibility for lawyer conduct: examining the agency nature of the lawyer-client relationship.

In the 1962 decision of Link v. Wabash Railroad Co., the United States Supreme Court reviewed a district court\u27s sua sponte dismissal of a diversity negligence action. Six years after the plaintiff filed the matter, the district court scheduled a pretrial conference and gave counsel two weeks notice of the scheduled conference. On the day of the conference, plaintiffs counsel called the court to say that he would be unable to attend the conference, giving the impolitic reason that he was busy preparing some documents for the state supreme court. The attorney did not attend the conference, and the district court dismissed the matter for failure to appear and prosecute the claim