The attorney-client privilege is fundamental to the adversarial system of law. Indeed, the Delaware Court of Chancery recently observed that “without the privilege, candid communication between client and counsel for purposes of representation would be impossible,” see Maverick Therapeutics v. Harpoon Therapeutics, C.A. 2019-0002-SG (Del. Ch. Aug. 9, 2019). At the same time, because the privilege operates to shield from disclosure certain information that might otherwise be relevant to a case or controversy, the Court of Chancery cautioned that “the privilege must be rigorously upheld, but only in the concise sphere within which it is indispensable.”
In a letter opinion issued Aug. 9, in Maverick Therapeutics, the Court of Chancery held that just because a client or its attorney designates something as “privileged,” doesn’t necessarily make it so. This opinion not only reinforces the contours of the attorney-client privilege, it makes plain that in order for the attorney-client privilege to apply, there must exist an actual attorney-client relationship between the parties engaged in communication.
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