You’re the general counsel of a respectably sized company, and the CEO has just walked into your office to discuss a civil investigation that a governmental agency has quietly launched into certain affairs of the company. There is no suggestion that the company has taken action that is criminal, and in fact you’re quite confident the investigation will amount to nothing because, as far as you know, the company has conducted itself appropriately in all respects. You listen calmly as the CEO describes the matters about which the agency is making inquiries; she asks for your thoughts about the potential ramifications for the company, as well as any strategies you might suggest for dealing with it. As she speaks, you envision Maxwell Smart’s “cone of silence” descending to protect this conversation. After all, this is a classic example of a privileged attorney-client communication—it’s impenetrably shielded from disclosure, right?
Not so fast. A vague memory from your law school days floats through your mind—something about an exception to the attorney-client privilege for “good cause.” That’s right, although the conversation is unquestionably privileged today, its privilege could evaporate in the future—shareholders asserting claims against the company (either directly or derivatively) in some lawsuit years from now might be given free rein to explore the substance of that discussion with your CEO.
