Attorney Client Privilege With Board Of Directors In San Jose
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FAQ
The communication must be between someone who was (or wanted to be) a client to an attorney acting as such at the time; The communication must have been made in confidence (without strangers present); and. The communications must have been made for the purpose of obtaining legal assistance.
Email Is Discoverable in Litigation Including legal counsel in board communications does not protect emails from discovery. A communication is privileged only if the dominant purpose of the communication is to further the objectives of the attorney-client relationship. (2022 Ranch LLC v. Superior Court (2003) 113 Cal.
While it is often associated with the defendent, either an attorney or a client can invoke the attorney-client privilege. This privilege protects confidential communications in the legal system, and supports a defendant's right to remain silent, consult legal counsel, and their right to defend themselves in court.
A lawyer serving as an outside director has the same duty of care as any other outside director, and the same exposure to liability. The lawyer's skill and knowledge must be brought into the boardroom in the interest of the corporation.
Since the client, and not the attorney, holds the privilege, the client holds the ultimate authority to assert it or waive it.
The privilege extends only to communications that the client intends to be confidential. Communications made in non-private settings, or in the presence of third persons unnecessary to accomplish the purpose for which the attorney was consulted, are not confidential and therefore are not protected by the privilege.
Board minutes often contain information that is subject to the attorney-client privilege and that directors may prefer to keep confidential. However, most jurisdictions allow stockholders to inspect corporate books and records, including board minutes.
The court held that “just as the attorney-client privilege itself survives the death of the client for whose benefit the privilege exists, the right to waive that privilege in the interest of the deceased client's estate also survives and may be exercised by the decedent's personal representative.”
"The power to waive the corporate attorney-client privilege rests with the corporation's management and is normally exercised by its officers and directors." Weintraub, 471 U.S. at 348; see also, ABA/BNA Lawyer's Manual, at 05; United States v.
