How to Avoid Waiving or Losing the Attorney-Client Privilege

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In an article published by the Portland Business Journal, Stoel Rives attorneys Amy Edwards and Beverly Pearman offer tips on how to avoid waiving or otherwise losing the attorney-client privilege. The privilege protects against disclosure of confidential communications made between a client and legal counsel.

Edwards and Pearman note that the privilege is not established merely because an in-house attorney was involved in the conversation or copied on an email. Only communications made predominantly for the purposes of soliciting legal advice are protected. They also discuss various ways in which the privilege can be waived, including disclosure to a third party and subsequent mergers and acquisitions.

To help protect the privilege, Edwards and Pearman recommend the following tips:

  • Limit the number of people involved in communications with counsel
  • Inform anyone communicating with counsel that business advice is not privileged
  • Keep written communications involving both business and legal advice separate, to the extent practicable
  • If third parties are involved in a transaction, do not include them on privileged communications, unless their involvement is necessary or highly useful to the provision of legal advice
  • If an attorney needs to work with a consultant on a technical issue, have the attorney engage that person directly pursuant to a contract expressly stating the consultant will assist the attorney in providing legal advice

Read the full article at the Portland Business Journal Website

"Protecting communications: How to avoid privilege pitfalls" was published by the Portland Business Journal, August 19th, 2011.

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Amy Edwards
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