The Judicial System’s Unjust Relationship with Attorney-Client Privilege: How Judges Knowingly (and Erroneously) Abrogate Important Contractual Arrangements in Corporate Transactions

A Delaware court has recently recognized the need to enforce contracts that delineate where the attorney-client privilege rests after an asset transfer. This Article will argue that courts across the country should recognize the important and legitimate reasons for this type of decision. Part I will review how the attorney-client privilege functions for corporations and how courts respect the importance of the privilege in other contexts. Part II will review the fundamental corporate changes in which these questions can arise and situations in which courts choose to recognize the importance of protecting the attorney-client privilege.

Part III will argue that courts should apply certain underlying principles that are discussed in Parts II and III to the asset-transfer context. This would result in parties being permitted to contemplate attorney-client privilege issues that may arise following an asset sale and contract to resolve the issues before they ever truly come to fruition. Example provisions are provided as a conclusion.