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In two unrelated stories making headlines today, the ability of attorneys to give corporate clients unvarnished and frank advice is coming under fire.
In New York, AG Cuomo is taking on outside counsel for Bank of America, saying in a letter to Lewis J. Liman of Cleary, Gottlieb, Steen & Hamilton, “…attorney-client privilege is hindering this office’s ability to make fair and fully informed decisions as to what charges, if any, to bring and whether individual Bank of America officers should be charged.”
We also have news out of Rhode Island where the 1st Circuit in U.S. v. Textron Inc. has ruled that tax accrual documents do not fall under the work product protections, even if prepared with litigation in mind, because their principal purpose is accounting, not legal. This creates a split between the circuits and makes the issue ripe for the Supreme Court.
