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Ruling sharpens boundaries in attorney-client privilege
By Kate Gordon Maynard The North Carolina Supreme Court’s recent opinion in Howard v. IOMAXIS LLC (2023 WL 4037483 (June 16, 2023)), provides valuable guidance to in-house and outside counsel regarding the attorney-client privilege when communicating with corporate officers and employees, as well as the attorney-client privilege in joint representations. Support for Bevill doctrine An [&he[...]
Case study: North Carolina courts provide guidance on scope, limitations of attorney-client privilege
By Sarah A. Sheridan Attorneys, particularly those working as in-house counsel or as outside counsel performing an investigation, often wear multiple hats and are expected to provide legal and business advice. A North Carolina Business Court decision provides helpful guidance regarding the scope and limitations of the attorney-client privilege, particularly in the context of when […]
Case study: North Carolina courts provide guidance on scope, limitations of attorney-client privilege
By Sarah A. Sheridan Attorneys, particularly those working as in-house counsel or as outside counsel performing an investigation, often wear multiple hats and are expected to provide legal and business advice. A North Carolina Business Court decision provides helpful guidance regarding the scope and limitations of the attorney-client privilege, particularly in the context of when […]
Attorneys – Company’s agreement with feds preserved privilege
A written agreement between a corporation and the government preserved the company’s attorney-client privilege and work-product protection for information that the general counsel of a subsidiary entity disclosed to the government. Background Several years ago, federal prosecutors opened a grand jury investigation into whether X Corp. (the company name is under seal) and its subsidiaries [&helli[...]
Attorneys – Attorney-Client Privilege – Insurance – Bad Faith Claim – Claim Files – Certified Question
Because plaintiffs established a prima facie case of bad faith failure to insure, and because the defendant-insurer in its answer denied bad faith liability, the district court ruled that the insured waived the attorney-client privilege with respect to the attorney-client communications in the insurer’s claim files, to the extent such communications are relevant under […]
Attorneys – Attorney-Client Relationship – Indemnity Agreement – Privilege – Civil Practice – Discovery – Findings of Fact & Conclusions of Law
Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc. (Lawyers Weekly No. 010-072-17, 11 pp.) (Paul Newby, J.) Appealed from Mecklenburg County Superior Court (Jesse Caldwell III, J.) On discretionary review from the Court of Appeals. N.C. S. Ct. Holding: Even though an indemnity agreement created a tripartite attorney-client relationship among a lessee, […]
Not privileged
Where a Virginia man signed a confidentiality waiver as part of his probation agreement with the state, during his sentencing hearing for another case, the district court did not err in considering statements the man made to a therapist regarding illegal sexual contact and his involvement in two murders, the 4th U.S. Circuit Court of […]
Waiver of privilege can extend to opinion counsel
One of the surest ways for a defendant to waive the protections on attorney-client communications is to invoke an “advice of counsel” defense. It stands to reason that if the client is going to argue he only messed up because his attorney gave him bad advice, the other side should get a chance to see […]
Common business interest doesn’t create attorney-client privilege
A chain of fitness clubs is perhaps sweating a bit more heavily after the North Carolina Court of Appeals ruled that it will have to hand over emails it exchanged with another fitness group that purchased some of the company’s assets. The court ruled that an indemnity agreement between the two health clubs was not […]
Friend’s presence no bar to attorney-client privilege, appeals court rules
Some things in life are better when you bring a friend along. Meeting with your attorney, however, is not traditionally one of them. Although attorneys say that having a trusted friend who can act as a facilitator between the client and counsel is of great value, bringing an outside party into the conversation risks destroying […]
Attorneys – Attorney-Client Privilege – Client’s Agent – Domestic Relations – Wife’s Friend – Work Product Protection
Berens v. Berens (Lawyers Weekly No. 011-135-16, 20 pp.) (Lucy Inman, J.) Appealed from Mecklenburg County District Court (David Strickland, J.) N.C. App. Holding: During a contentious divorce, a non-practicing lawyer could serve as the defendant-wife’s agent for purposes of assisting the wife in communications with legal counsel. The non-practicing lawyer’s presence during communications with[...]
4th Circuit weighs exceptions to attorney-client privilege
High-powered attorneys from white-shoe law firms in New York and Washington, D.C., were not enough to convince the 4th U.S. Circuit Court of Appeals that a trial judge abused his discretion when he determined the attorney-client privilege did not protect evidence sought by a grand jury investigating two commodities traders. A three-judge panel upheld the […]
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