Asserting Attorney-Client Privilege When Affiliated Entities' Interests Diverge: Common Interest Doctrine

Description

An attorney for a parent corporation generally advises its subsidiaries or affiliates as well. The primary concern for counsel is whether and how attorney-client privilege can be asserted when the affiliated entities' interests become adverse for a variety of reasons, including, but not limited to, litigation between or involving the parent and subsidiary, inorganic growth of one of the entities, or initiation of bankruptcy or insolvency proceedings. How should counsel approach joint representation in the event of a conflict of interest? If counsel proceeds with joint representation, how should that representation be defined? When is separate counsel necessary?

Further, inorganic growth, including, but not limited to, spin-offs, mergers, or acquisitions, presents unique challenges to counsel representing new or divested corporate entities, both through the pendency of the deal transaction and post-closing. In order to avoid the additional cost of production and risk of privilege waiver, counsel needs to consider when and how to contractually transfer privilege rights or how to effectively negotiate provisions around pre-merger client communications.

Listen as our authoritative panel discusses best practices for navigating and resolving attorney-client privilege issues that arise when the common interests of parent corporations and their affiliates or subsidiaries become adverse.