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Intra-Law Firm Communications

By Richard M. Zielinski

Hypothetical: Your firm represents a long-time client in a business transaction. In the course of the representation, an associate working on the matter becomes concerned about the ethical propriety of some action taken by the partner in charge. She sends an e-mail to the firm's in-house ethics counsel, who conducts an internal investigation of the matter. The partner, associate and other employees of the firm are interviewed. Various notes and memoranda to file are prepared. Nothing is disclosed to the client. Eventually, the deal goes forward and is a catastrophic failure. The client sues the firm for malpractice and requests all of the firm's documents relating to the matter.

Question: Can the firm decline to produce the e-mails, notes and memoranda relating to its internal investigation on the grounds that the material is
protected by the firm's own attorney-client or work product privileges?

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