Understanding the Fiduciary Exception to Attorney-Client Privilege

Executives may feel confident that communications with their attorneys are protected by the attorney-client privilege, but that may not always be the case. In situations in which fiduciary duties are implicated, otherwise privileged communications may be disclosed to investors and partners during disputes, creating legal and reputational risks that were not anticipated or considered when counsel’s advice was sought. This guest article by Pryor Cashman partner David C. Rose addresses the limits to attorney-client privilege, explains the fiduciary exception and when it may apply, and reviews the risks of disclosure of otherwise privileged information. See our two-part series on in-house counsel and privilege: “Importance of Discerning Their Client and Managing Evolving Attorney-Client Privilege Issues” (Aug. 3, 2022), and “Tips for Navigating Typical Ethical Dilemmas and Conflicts of Interest” (Aug. 10, 2022).

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