Attorney-Client Privilege and Dual-Purpose Advice: How including business advice in client communications affects privileged status
Ernest (Pat) Shriver
Fafinski Mark & Johnson, P.A.
Pat is a corporate, transactional and intellectual property attorney, focusing on small to medium sized privately-held businesses.
Bradley R. Hutter
Fafinski Mark & Johnson, P.A.
Brad Hutter is an Associate in FMJ’s Litigation and Bankruptcy & Insolvency practice groups. Brad represents business clients in litigation arising out of complex commercial transactions, fiduciary relationships, and business insolvencies.
On-Demand:December 14, 2022
$195.002 hour CLE
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Are attorney-client communications privileged when they contain both legal advice and business advice? The issue of “mixed” or “dual-purpose” communications is being litigated more frequently in federal courts, and the legal landscape affecting these disputes may be changing. The panel’s discussion will aid lawyers in litigation, investigations, regulatory compliance, and other practice areas to understand how including business advice in client communications may affect their privileged status.
Key topics to be discussed:
State law survey
Federal court decisions
Application of key principles
Date: December 14, 2022
Ernest (Pat) Shriver | Fafinski Mark & Johnson, P.A.
Pat is a corporate, transactional and intellectual property attorney, focusing on small to medium sized privately-held businesses. Pat’s practice includes advising clients on choice of entity, general corporate and partnership matters, commercial matters (contract drafting, review and advice), shareholder and partner relations (shareholder, partnership, and “buy/sell” agreements), securities and other corporate financing, business combination matters (including mergers, asset and stock purchases, and other similar business combinations), and intellectual property issues. Pat also works with regulated and unregulated lenders with regard to commercial lending and financing transactions, including secured and unsecured lending.
In the area of intellectual property, Pat assists clients with trademark and copyright registration and compliance, trademark and copyright licensing, dispute resolution and pre-dispute counseling, Internet law and domain name issues, and trade secret issues. Pat also works with independent patent attorneys for his clients that have patent needs.
Pat was named one of Minnesota’s “Rising Stars” in the legal profession in 2006 and a Super Lawyer every year since 2009 – a distinction only 5% of attorneys in Minnesota attain. He has also received an AV Peer Review Rating through Martindale-Hubbell.
Prior to attending college, Pat served for six years in the United States Marine Corps as Russian cryptologic linguist, held the rank of Sergeant, and served as an electronic warfare team chief in all sorts of climes and places.
Bradley R. Hutter | Fafinski Mark & Johnson, P.A.
Brad Hutter is an Associate in FMJ’s Litigation and Bankruptcy & Insolvency practice groups. Brad represents business clients in litigation arising out of complex commercial transactions, fiduciary relationships, and business insolvencies. He has represented a diverse set of clients from the banking, real estate, retail, transportation, construction, and aviation industries. Brad’s experience includes defending multiple-plaintiff and putative class action claims in federal court.
Brad also advises business clients whose rights are affected by the actions of government agencies. Before joining FMJ, Brad served as an Assistant Attorney General in the Minnesota Attorney General’s Office. There, he tried administrative enforcement actions on behalf of his state agency client and defended state government officials and employees in litigation. At FMJ, Brad draws on this experience to advise businesses facing enforcement actions or investigations, as well as clients considering affirmative litigation against the government. He also brings his government experience to bear when clients find themselves in business disputes that are made riskier or more complicated by a regulatory or administrative law issue.
Brad is also a co-leader of FMJ’s E-Discovery practice group. Through FMJ’s relationships with trusted third-party vendors, he helps clients to efficiently and securely meet their discovery obligations while minimizing the disruption that discovery can cause to a business’ operations. He stays abreast of developments in e-discovery, and he is constantly looking for new ways to use new legal technology to benefit FMJ’s clients.
Outside of his law practice, Brad serves as Vice Chair of the Board of Directors of the Minnesota Council on Economic Education. Founded in 1961, the MCEE seeks to equip Minnesotans with the economic and personal financial understanding needed to succeed in today’s complex economy.
I. State law survey. Discussion of the different state law approaches federal courts will apply in diversity cases under FRE 501 | 11:00am – 11:30am
II. Federal court decisions. Discussion of key federal court decisions, the potential circuit split, and the In re Grand Jury case, which the U.S. Supreme Court will hear in January 2023 | 11:30am – 12:00pm
Break | 12:00pm – 12:10pm
III. Application of key principles. Discussion of industry -and context-specific guidance for lawyers in various contexts | 12:10pm – 1:10pm