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Protecting Pre-Merger Client Communications After the Deal's Done

The Recorder

As merger and acquisition activity slowly starts to increase, attorneys representing corporate entities involved in such transactions are facing increased risk.

This increased risk arises from the possibility that highly confidential communications between a corporate entity and its counsel might not be protected in subsequent litigation between the merging companies. This foreseeable risk, if undisclosed, can create exposure for both the client and the attorney.

Typically, clients and attorneys expect the attorney-client privilege protects communications between attorneys and a corporate entity, through its officers, directors and employees. Certainly, clients involved in heavily—and sometimes hotly—negotiated deals expect the privilege protects thoughts, purposes, intents and statements communicated to their attorneys from future disclosure.

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