Protecting Attorney Client Privilege when the Threat of Litigation Arises
One of the primary purposes of trade associations is for member entities to share information about common issues and problems that confront the industry or profession. Often the problems and issues raise legal concerns. These may include litigation involving individual members, which could affect the industry or profession as a whole. The types of legal problems may be diverse, ranging from labor disputes to regulatory obligations.
Thorny issues often arise, however, as to when information that is shared among association members is entitled to protection from disclosure on attorney-client privilege grounds. The extent to which such communications may be protected is uncertain because courts have reached starkly different conclusions as to the scope of the privilege. While some courts afford protection from disclosure of communications any time that parties sharing confidential information have a common interest in a legal question, other courts have limited the privilege to instances when there is a palpable threat of litigation at the time of the communication. Even under the more relaxed standards, courts will be more likely to apply the privilege if the party to whom the disclosure is made faces identifiable risks associated with the legal issue presented.
The full article can be read here.
