Attorneys whose practice involves representing corporations generally assume that the attorney-client privilege shields from discovery communications between the attorneys and corporate management concerning various corporate matters unless the privilege is waived. This column discusses whether the corporation and its attorneys must disclose privileged communications relevant to those matters to shareholder plaintiffs in actions based upon breaches by management of their fiduciary duties or other wrongdoing arising out of those matters.
The reason for such discussion now is the First Department’s decision in NAMA Holdings v. Greenberg Traurig, 133 A.D.3d 46 (2015) (NAMA), where the court in a thoughtful and comprehensive opinion authored by Justice Rolando T. Acosta confirmed the potential applicability of the so-called fiduciary exception to the attorney-client privilege in shareholder actions, and clarified when the exception will in fact apply in these actions.
The Fiduciary Exception
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