Representing an Entity: The Attorney-Client Privilege and Duty of Confidentiality

Abstract

There are significant questions surrounding the organizational attorney-client privilege and the attorney’s duty of confidentiality to his or her organizational client under Rule 1.6 of the Colorado Rules of Professional Conduct (“Colo. RPC”) and Colorado statutes. These are important questions and impact the practice of business law in general. Among the questions are:

1. Who can assert the privilege?

2. What happens to the privilege when the client merges?

3. Can current management protect their attorney-client communications from disclosure by successor management?

Keywords: attorney-client privilege, duty of confidentiality, ethics, rules of professional conduct

JEL Classification: k2, k22, k39, k40