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What is Business Advice?
Edited by Vincent S. Walkowiak
The exclusion of the privilege hinges upon the principle that, for the attorney-client privilege to apply, the “confidential communication must be for the primary purpose of soliciting legal, rather than business, advice.” Discoverable documents have been held to include “draft by-laws, promissory notes, security agreements, incorporation documents, partnership documents and tax information. These documents are business related and do not contain personal legal advice.” Courts have held that if an attorney is performing the work on a non-lawyer the privilege will not apply unless there is a significant legal element involved. Further, a corporation cannot use counsel to shield otherwise unprivileged information by simply forwarding it to an attorney, copying counsel on an email or by having an attorney conduct an investigation.
Sponsoring Entity:
ABA Tort Trial & Insurance Practice Section
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