Importance of In‑House Counsel Discerning Their Client and Managing Evolving Attorney‑Client Privilege Issues (Part One of Two)

A number of ethical issues may arise for attorneys that represent PE firms. In-house counsel may need to grapple with additional complexities when they are also partners of the firm, performing multiple roles or forced to address situations that make it difficult for them to clearly demarcate when the attorney-client privilege needs to apply (and for whom). To address certain of the ethical issues that commonly arise for in-house counsel of PE sponsors, Practising Law Institute hosted a webinar featuring Michael S. Hong, partner at Davis Polk; Sarah A. Mudho, GC and CCO at Wellspring Capital Management; and Gitanjali Workman, GC and chief operating officer at Source Capital. This first article in a two-part series examines the importance of correctly identifying which individual or entity is a GC’s client, as well as attorney-client privilege considerations in the context of PE transactions. The second article will consider unique ethical issues that in-house counsel confront and guidance for navigating common types of conflicts of interest. For additional insights from Hong, see “SEC Sanctions Adviser for Misleading ‘2 and 20’ Fee Claims and Improper Inter‑Fund Loan Practices” (Apr. 5, 2022); and “SEC Fines and Bars CCO From the Funds Industry for Compliance Failures and Deceiving OCIE” (Nov. 10, 2020).

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