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Edward T. Kang, Kang Haggerty & Fetbroyt Edward T. Kang, Kang Haggerty & Fetbroyt

In an article I wrote last month on attorney-client privilege, I discussed the potential for its abuse at the hands of unscrupulous lawyers attempting to impede discovery by framing nonprivileged materials as privileged. In a business setting, such as a board of directors meeting, for instance, the company may try to use counsel’s presence in a board meeting to argue that the content discussed at the meeting is privileged, even when the communication during the meeting does not satisfy the attorney-client privilege’s requirements. This example assumes a situation involving a dispute between the company and a third party. But what happens when a dispute is between or among directors of the same company? Can the company use the attorney-client privilege to shield corporate materials, including any attorney-client privileged materials against a director?

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