Exceptions to Attorney-Client Privilege: Avoiding Surprises and Piercing Invalid Claims of Privilege
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Class Action and Other Litigation
- event Date
Tuesday, February 25, 2025
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will assist counsel in understanding, recognizing, and navigating exceptions to the attorney-client privilege to ensure that non-privileged information is available and to fend off attempts to shoehorn privileged communications into an exception. The program will offer an overview of the attorney-client privilege, including its application to third parties, discuss the elements of both statutory and common law exceptions, and address how the exceptions are enforced and how they can be avoided.
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.
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.
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.
- Overview of attorney-client privilege
- Exceptions
- Crime-fraud exception
- Impact of ABA Model Rule 1.16 and Formal Opinion 513
- Duty of disclosure
- Fiduciary exception
- Garner doctrine
- Beyond derivative suits
- Special Litigation Committee Reports
- Internal communications with in-house counsel
- Wills and estates matters
- Suits against former attorneys
- The "at issue" waiver: advice of counsel defense
- Implied waiver: some jurisdictions find that simply opposing a claim of bad faith waives privilege
- Crime-fraud exception
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?
