A foundation of the attorney-client relationship is the understanding that communications between the attorney and the client will be protected by the attorney-client privilege. However, for attorneys advising corporations in connection with mergers and acquisitions, there is growing uncertainty regarding how confidential communications between an attorney and the predecessor corporation will be treated after a completed merger.
In the context of the often intense and high-stakes negotiation of business deals, the corporate client (through its officers, directors, and employees) generally expects that statements made to its attorneys regarding the negotiations will be protected from future disclosure. There is a risk, however, that communications will lose their protection if, for example, there is subsequent litigation between the merging companies relating to the transaction.
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