Ethics

Prompted by Brad's post I have looked more closely at the district court order in the Broadcom matter.  It presents several interesting issues and I have drafted an amicus brief addressing them. 

The brief takes issue with the proposition that as a matter of law an entity constituent can have no privilege regarding communications with joint counsel concerning the constituent's work for the entity.  That is the gist of the position taken by the cases in Brad's post and I disagree with it.  I think the default position should be that each client is entitled to full confidentiality and privilege, subject to an agreement on some scope of waiver.  Whether there is such an agreement and what its scope might be are factual questions, in my view, not legal ones.

In other respects the brief clarifies some issues concerning the relationship between privilege (and waiver) and the duties of loyalty and confidentiality.  It reaches no ultimate conclusion other than that further facts are needed. 

If you would like to see a copy please e-mail me directly.

DM