ICYMI . . .The Transactional Common Interest Privilege in New York–Common, But Not So Privileged

Transacting parties beware—in New York, unlike some other jurisdictions, sharing legal analysis between transacting parties results in the loss of the attorney-client privilege by each party so sharing as of the time of the sharing, even though the transaction subsequently closes and the acquiring party inherits the privilege (unless you can show that the sharing was in anticipation of litigation in which the parties shared a common interest).

If an attorney renders legal advice to his or her own client in connection with a deal, that advice is protected from discovery by one of the most ancient of the recognized evidentiary privileges—the attorney-client privilege.  And that protection exists whether or not the advice that was provided to the attorney’s client was solicited or given in connection with or in anticipation of litigation. Instead, the only test for determining whether confidential communications between an attorney and his or her client are privileged is whether the communications were “made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship.”  That cherished and well-recognized privilege can be waived, however, if an otherwise privileged communication is “made in the presence of third parties,” or the otherwise privileged communication is “subsequently revealed to a third party.”
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