Massachusetts Supreme Judicial Court had to decide attorney client privilege in a messy quarrel over a closely held business where corporate counsel refused to participate in ‘discovery’.  The original founder of the private Clair companies was the father; he gave the company to his four sons in equal shares.  Two sons died, setting the stage for intra-family litigation war over money.  Their widows sued and Corporate Counsel got to sit in the discovery hot seat.

Corporate Counsel owes their duty to the client, the company – not to the officers individually.  The attorney/client privilege prevents counsel from divulging information given for legal advice when shared with just the client.

The widow representing the son’s estate was not the client of the company’s corporate counsel.  Her position was antagonistic to that of the company.  Corporate counsel was prohibited to reveal any legal advice history to her.

A company can waive the corporate counsel attorney client privilege and the company did that in the Clair case, by making a claim against the deceased brother (and then ¼ owner) for breach of fiduciary duties to the company, before his death.

The case is Clair v Clair 464 Mass 205 (2013).  Corporate counsel’s smartest move in my opinion was to assert the privilege, refuse to answer questions or turn over documents and let a judge sort out the waiver issue.