What Can an Attorney Do to Ensure that Communications Remain Privileged?
Given the overall strong likelihood that the attorney-client privilege can be waived in a cross-border insolvency proceeding, attorneys must consider what can be done to better insure that their communications remain privileged. Perhaps the most important consideration is to clearly identify who the attorney represents. To protect the interests of management, corporate counsel should be careful to avoid situations where he is asked to render advice about personal rights or obligations. Conversely, attorneys that represent individual directors and officers should take care in how they communicate with their clients because an at-work communication that is recorded by the company (such as e-mails on a server) could result in a waiver of the attorney-client privilege. 15 In certain limited situations, some communications may also be protected under the joint-defense privilege. The privilege is important because, for instance, where a subsidiary is divested, it is free to waive the attorne
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