court rules attorney-client privilege ceases to exist when corporation ceases to exist

Nonetheless, most courts to consider the issue have agreed with Wettick that the attorney-client privilege dies with the corporation. These courts reason that once the corporate entity ceases to exist, or no longer has any officers or directors with authority to assert or waive the privilege, the attorney-client privilege no longer applies.

Full Answer

What is attorney client privilege?

Although the attorney-client privilege is absolute, meaning that a party may not overcome the privilege once established, some courts create an exception where a company ceases to exist and no longer has officers or directors. Some courts applying this exception hold that the privilege ceases only when the company is completely dissolved, meaning liquidation proceedings are complete. Other courts see no distinction between a company in liquidation proceedings and a company that has simply stopped functioning.

What is attorney-client privilege in Wallis v. Centennial?

Co., 2013 WL 43441 (E.D. Cal. Feb. 1, 2013), and ruled that the privilege continues to exist while a company remains in liquidation proceedings. In Wallis, an insured sought a declaratory judgment that two insurance companies should pay her attorneys’ fees incurred in a lawsuit covered by the companies’ insurance policies. The insured sought to depose the companies’ attorneys, but the companies asserted the attorney-client privilege even though a New York state court had ordered them into liquidation proceedings.

Opinion Letter or Inducement Letter?

A lawyer and his law firm, acting as outside general counsel for EAGLE-Net Alliance, made certain representations in an opinion letter to Affiniti Colorado, LLC. Based on this letter, Affiniti entered into a management agreement with EAGLE-Net and provided it with capital.

Is It Dead?

The question for the appellate court was whether Colorado recognized a posthumous attorney–client privilege for corporate entities. Most states, including Colorado, have not decided this issue.

Future Exception?

Fellman noted that, under Colorado law, corporations can sue and be sued even after dissolution. But Fellman did “not develop the argument,” so the Court did not consider it.

Rationale

If you want to the know the reason for the rule—rather than just the rule—then here goes.

What is the attorney-client privilege?

The general traditional common-law rule is that the attorney-client privilege is forever. The protection covers communications between a client and his or her attorney in connection with the provision of legal advice.

What is the purpose of privilege?

The most recognized purpose of the privilege is to encourage clients to confide all salient facts to their attorneys in order to permit attorneys to advise clients properly . The idea is that in the absence of such an unfettered exchange of information, justice would be frustrated.

How many whacks did Lizzie Borden give her mother?

Lizzie Borden took an axe. And gave her mother forty whacks. When she saw what she had done. She gave her father forty-one. What you may not know is that Lizzie Borden’s lead attorney’s law firm continues to this day to maintain her client files in a confidential manner.

What is the work product doctrine?

495 (1947), as a common-law principle that prevents the legal profession from “performing its functions either without wits or on wits borrowed from the adversary.” This form of confidentiality protects the attorney’s materials prepared in anticipation of litigation or trial. The purpose of the work-product doctrine overlaps with that of the privilege but also encourages efficient law practice so that lawyers can make notes and collect facts relevant to litigation strategies without fear that adversaries would “live by the wits of an adversary.” The work-product doctrine is both narrower than the attorney-client privilege, because it relates only to litigation preparation, and broader, because it covers the attorney’s work product and not just his or her communications with a client. Whether work product survives the death of the client was not answered by the Swidler Court because resolution of the post-death privilege question made that work-product analysis unnecessary. To the extent that an attorney’s notes reveal client communications, the Swidler approach might be applied in the work-product context. However, the question of the impact of the attorney’s death on work-product protection is unanswered by Swidler and largely unaddressed by state courts or by scholars. While some of the language of Hickman describes work product as a form of intellectual property right of the attorney, the limitation of its scope to the representation of a particular client in anticipation of litigation is much narrower than that applied to the attorney-client privilege. This focus could well support a finding that the settlement of the dispute, and, even more so, the death of the litigants, could extinguish the protection of the doctrine.

Who was the woman who took an axe?

Download a printable PDF of this article (membership required). Many readers have heard of Lizzie Borden, tried and acquitted of the 1892 murder in Massachusetts of her father and stepmother. The case even inspired a rhyme: Lizzie Borden took an axe. And gave her mother forty whacks.

Who was Vince Foster?

Vince Foster, the deputy White House counsel, had sought legal advice from James Hamilton, an attorney in private practice. Nine days after consulting with Hamilton, Foster committed suicide. The independent counsel investigating President Clinton caused a grand jury to issue a subpoena for Hamilton’s handwritten notes.

Opinion Letter Or Inducement Letter?

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Is It Dead?

Future Exception?

Company’S Former Attorney and Ethical Obligations

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Rationale

Additional Resources