Yes, but … Court Limits Privileged Discussions between Healthcare LLC’s Lawyer and its Member-Physician

In a 2–1 decision, an Illinois appellate court ruled that, in a medical-malpractice action, a healthcare LLC’s lawyer may hold privileged, ex parte communications with a non-party LLC member who also served as the plaintiff’s treating physician.

The court imposed limitations on the discussion, however, disallowing privileged communications prior to the non-party physician’s damages deposition but allowing privileged communications before his liability deposition.  McChristian v. Brink, 2016 IL App 152674 (Ill. App. Ct. Sept. 30, 2016), corrected opinion issued December 22, 2016.  Read the decision here.

While not a complete victory for medical-malpractice defense lawyers, they must feel better than their Washington-state counterparts.  In 2014, the Washington Supreme Court, in Youngs v. Peacehealth, 316 P.3d 1035 (Wash. 2014), held that the State’s common-law prohibition of defense attorneys’ ex parte communications with a plaintiff-patient’s non-party physicians supersedes the corporation’s attorney–client privilege with its employed physicians.

Regarding Youngs, check out my blog post or my article in Medical Liability Monitor about the decision. More…

Stunning: WA SC Rejects Privilege between Corporate Counsel and Former Employees

In a surprising decision, the Washington Supreme Court, in a 5–4 ruling, held that the corporate attorney–client privilege does not protect communications between an organization’s counsel and its former employees.  In the face of a strong dissenting opinion, the majority departed from most other courts’ rulings that, based on SCOTUS’s Upjohn decision, the privilege covers a former employee’s communications so long as they pertain to the subject matter of her employment.  Newman v. Highland Sch. Dist., 381 P.3d 1188 (Wash. 2016).   You may read the decision here.

Background & Issue Presented

Matthew Newman sued his school district after suffering a permanent brain injury during a football game.  The district’s outside counsel interviewed all of the football coaches, some of whom no longer worked for the district at the time of the interviews. More…

Legal Advice or PR Plan? A Pertinent Privilege Conundrum

Originally published by Law360, New York (June 9, 2016, 11:40 AM ET) — The ever-expanding scope of what constitutes the “press” creates new issues for companies and their counsel dealing 9628788 - public relations blue puzzle pieces assembledwith disputes that either are in or will develop into litigation. Routine corporate disputes that received no media interest are now the subject of nontraditional media outlets such as blogs, internet news sites, social media posts, and homegrown, community websites. And the traditional media, whether newspapers, radio or local television stations, mine these sites for content and contact companies seeking comments, interviews and information about otherwise insipid disputes.

As a result, companies are increasingly turning to their in-house and outside corporate counsel to craft a media strategy as part of the litigation strategy. They ask lawyers to draft press releases, prepare employees for media interviews, and work with internal or external public relations professionals. Communications associated with these tasks often contain information the company wishes to protect from disclosure, and the question arises whether the attorney-client privilege or work-product doctrine serve that protective role. More…