'[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?'
Broad View of Privilege in Second Circuit Ruling
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.
By
James Hough And Jessica KaufmanThis premium content is locked for LawJournalNewsletters subscribers only
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