Although the attorney-client privilege protects your communications with your attorney when your attorney represents you individually, if an attorney is engaged to represent your corporation (for which you are an officer or director), your communications with “your” attorney are unlikely to be protected from the corporation’s other officers and directors. This concept is illustrated by a recent Delaware case which found that a corporate defendant could not invoke the attorney-client privilege to block an individual director from obtaining allegedly privileged attorney-client materials. Thus, it is important that you determine at the outset of your representation whether you want “your” attorney to represent you, individually, or your corporation. If the client is the corporation, even if legal advice is rendered to the corporation through you, you and the corporation’s other directors and officers are likely to be considered a “joint client,” and your communications with the attorney (subject to certain exceptions) may be disclosed to the other “joint client” directors and officers.
This article is not intended to establish an attorney-client relationship and is not intended to confer legal advice. No attorney-client relationship should be inferred in the absence of a written and executed engagement agreement that expressly indicates the creation of an attorney-client relationship.
Written by: Heather Wagner