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The Corporate CounselorLJN NewslettersNewsSections

Broad View of Privilege in Second Circuit Ruling

By James Hough and Jessica Kaufman
April 30, 2007

'[W]hat corporations do not want is an attorney who views a particular situation or proposal and says 'you cannot do that because it is illegal, period.' We want attorneys that start by saying 'Maybe,' followed by, 'Have you looked at a different approach?' The attorney who works with you and suggests alternatives so you can still get your end result is the one who is providing quality legal services.' Mary C. Daly, The Cultural, Ethical, and Legal Challenges in Lawyering for a Global Organization: The Role of the General Counsel, 46 Emory L.J. 1057, 1062-1063 (Summer 1997)

It is no longer acceptable ' if it ever was ' for in-house counsel merely to provide reactive assessments of legal risk presented by business people. Today, in-house lawyers must provide proactive solutions to their clients' problems, including solutions that mix legal advice with business-oriented suggestions. Of course, the attorney-client privilege protects only legal advice, and thus presents, at times, a difficult question: when has an in-house counsel provided non-privileged business advice instead of protected legal advice? That line is not always easy to draw, but a recent Second Circuit decision provides some guidance.

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