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Business Crimes BulletinFeaturesLitigationRegulation

State Attorney-Client Privilege Rule Incorporated into Federal Law

By Robert J. Stearn, Jr., Cory D. Kandestin and Christopher M. De Lillo

Because state law applies at the time a transaction is negotiated, the parties might assume — reasonably so — that state privilege law will govern communications with their attorneys and financial professionals. But what happens if, years later, a suit is filed in federal court and brings claims under federal law? Does state privilege law still apply?

The answer matters, because the Delaware attorney-client privilege protects a broader array of communications involving financial professionals than does federal privilege law. Would communications that were privileged when they were made lose such status years later? Would a federal court honor Delaware's privilege rule even though federal law typically would not treat the same communications as privileged?

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