In our previous blog on Meissner v. Yun, a New York case decided under Delaware law, we discussed the importance of a written LLC agreement (sometimes also referred to as member/operating/company agreement, depending on the jurisdiction) that spells out each member’s rights and obligations with specificity in the context of a break-up between two business partners.[1] In that case, the business partners did not have a signed operating agreement, which led to a dispute surrounding capital contributions and ownership.
A recent opinion in this case dealt with the issue of attorney-client privilege.[2] Confidentiality and attorney-client privilege are not just legal TV show catch phrases. Confidentiality is an ethics rule that requires a lawyer not to disclose information relating to the representation of a client except in certain limited situations. The purpose of the rule is not only to protect information concerning the client but also to promote honesty, openness, and trust between the lawyer and the client. Attorney-client privilege, on the other hand, is an evidentiary rule that protects communications between the lawyer and the client from disclosure. For example, if you are involved in a lawsuit and the opposing party requests an attorney-client privileged document during discovery—a process of gathering information related to the lawsuit—you may claim the privilege and withhold the document.
If you’re asserting attorney-client privilege, however, some very basic requirements must be met first. We will discuss what that is in our next post.
This was part of a two-part series on attorney-client privilege under New York law. You can find the other post by searching our blogs at www.mcbrideattorneys.com.
This posting is intended to be a planning tool to familiarize readers with some of the high-level issues discussed herein. This is not meant to be a comprehensive discussion and additional details should be discussed with your transaction planners including attorneys, accountants, consultants, bankers, and other business planners who can provide advice for your circumstances. This article should not be treated as legal advice to any person or entity.
Steps have been taken to verify the contents of this article prior to publication. However, readers should not, and may not, rely on this article. Please consult with counsel to verify all contents and do not rely solely on this article in planning your legal transactions.
[1] See generally Meissner v. Yun, 2015 N.Y. Slip. Op. 31181(U) (Sup. Ct. N.Y. Cty. July 6, 2015).
[2] See generally Meissner v. Yun, 2016 N.Y. Slip. Op. 30468(U) (Sup. Ct. N.Y. Cty. Mar. 17, 2016). Unless otherwise specified, all references to the case are to this citation.