Delaware Business Litigation Report

Court Of Chancery Explains Privilege Waiver Law

In Re Comverge, Inc. Shareholders Litigation, C.A. 7368-VCP (April 10, 2013)

When does the mere assertion that your client had "advice of counsel" waive the attorney-client privilege?  This question comes up more often than you might think.  This decision makes clear that in some instances, merely asserting that you sought an attorney's advice is not a waiver of the privilege.  The 2 keys to retaining the privilege are not injecting the advice of counsel issue into the litigation yourself and not actually saying what the attorney told you.  But, if you follow the guidance in this decision, the privilege will be preserved.

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