Howard M. Cooper was quoted in a Massachusetts Lawyers Weekly article on a court decision denying former officers of a corporation access to communications between the company and its lawyers – even if the communications at issue were exchanged when the former officers worked for the business.
The court denied access to the protected communications, determining that the attorney-client privilege belongs to the entity, not individual officers and directors. The ex-company officers were adverse to their former company in light of a lawsuit they filed against it, and could not pierce the privilege, the judge ruled.
Mr. Cooper – who represented clients in a Supreme Judicial Court case involving similar issues (Chambers v. Gold Medal Bakery, Inc.,) – indicated that a "better rule" is to allow an officer or director access to privileged communications made during the time they are part of an organization, even if they become subsequently adverse as a result of filing a lawsuit.
He acknowledged the judge's concern of former company officials potentially "weaponizing" communications in subsequent litigation, but told Lawyers Weekly in its Aug. 14 issue that former corporate officers forfeit their right to privileged communications only when they act inconsistently with their fiduciary duties.
Mr. Cooper regularly represents clients in major business litigation cases, including those involving closely-held businesses.
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