Linda Galler Quoted by Law360 on Protecting Legal Counsel

Senior Tax Counsel Linda Galler was quoted extensively by Law360 in its November 20 article reacting to a recent Second Circuit ruling on attorney-client privilege and work product protection.

The article was based on the court's finding that billionaire Georg F.W. Schaeffler and his company, the Schaeffler Group, waived their privilege rights with respect to certain documents sought by the IRS in connection with their acquisition of Continental AG. The documents had been shared with the banking consortium, which had underwritten a loan to finance the deal. The court held, however, that documents prepared in connection with a proposed restructuring, but in anticipation of likely litigation, were protected by the work product doctrine.

Ms. Galler said one takeaway from the court's ruling is that it is a good idea to state explicitly when at least some of the legal advice is prepared in expectation of a court dispute. “It's probably a reasonably good practice,” she told Law360, “that if you are giving written advice in the context of anticipated litigation, the advice ought to say that on the face of it.”