As merger and acquisition activity slowly starts to increase, attorneys representing corporate entities in such transactions face increased risk arising from the possibility that highly confidential communications between a corporate entity and its counsel might not be protected in subsequent litigation between the merging companies. It is this foreseeable risk that, if undisclosed, can create exposure for both the client and the attorney.
Typically, clients and attorneys expect that the attorney-client privilege protects communications between attorneys and a corporate entity (through its officers, directors and employees). Certainly, clients involved in heavily (and sometimes hotly) negotiated deals expect that the privilege protects their thoughts, purposes, intents, and statements communicated to their attorneys from future disclosure.
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