Litigators are very attuned to the questions presented by attorney-client privilege. Deal lawyers may not be as attuned. Let’s say you are locked in a hot and heavy battle to rescue a distressed company or broken deal. One party has defaulted or is on the verge of defaulting, default notices have been fired across the bows, and everyone is exploring how best to gain an advantage as the project or company proceeds towards restructuring. Your client is attempting to build a coalition of investors or at least parties with a commonly shared interest in order to accomplish this restructuring.
In that process, your client wants to tell these other parties that “counsel has advised” that they take a certain action. He or she has asked you, the deal lawyer, if it’s ok to tell the investors that. What do you say? Is it ok for your client to reveal, merely, that legal advice has been given and that your client is thus going to take a particular action? Or is there a greater risk? Has your client just potentially waived his or her attorney-client privilege and thus made everything related to the subject matter of the disclosed advice discoverable in later litigation?
