What’s Mine is Not Yours: Former Officers and the Corporation’s Attorney-Client Privilege

Many issues arise when an officer or director involuntarily leaves a company.  Companies are quick to enforce non-compete agreements and protect trade secrets against the former officer, but often do not consider protection of legal communications in which the officer participated.

A former officer inherently maintains insider information, including the contents of privileged emails and other communications that he created or Firedreceived.  And he may personally possess this information because he extracted them prior to leaving or otherwise had them in his personal possession during the normal course of business.

But in post-departure litigation between the officer and the company, the question arises whether the corporation may prevent the use of privileged, officer-created communications or whether the privilege equally belongs to the former officer turned adversary.

In my recent article, What’s Mine is Not Yours: Former Officers and Directors and the Corporation’s Attorney-Client Privilege, co-written with Kristi Wilcox Arth, I discuss that courts take two approaches to this issue: the collective-corporate-client approach and the entity-as-client approach.  The approach a court takes will determine whether the corporation may prevent a former officer from using privileged communications.

This article, available here, was originally published in The Corporate Counselor, and I thank this publication for permission to reprint the article on my blog.  The article was later re-published in The Association of Corporate Counsel Newsstand and Corporate Counsel.  And for a specific discussion of a court addressing these issues, see my prior post “Who’s the Client? Former CEO Not Entitled to Company’s Privileged Documents”.

I hope you find the article informative and helpful.