Court Determines Attorney Client Privilege Retained by Reorganized Debtor

Faegre Drinker co-chair Andrew Kassner and senior attorney Joseph Argentina coauthored the article “Court Determines Attorney-Client Privilege Retained by Reorganized Debtor,” which originally appeared in the December 4, 2020 edition of The Legal Intelligencer.

The authors noted that one of the most misunderstood areas of law for nonbankruptcy and bankruptcy attorneys alike is the attorney-client privilege, including the scope of the privilege, who holds it, and when and by whom it can be waived. They write that as is often the case in bankruptcy, additional complexities arise.

In their article, Kassner and Argentina highlighted a recent case addressed by the U.S. Bankruptcy Court for the District of Delaware in which the court reviewed provisions of the debtor’s Chapter 11 plan, controlling law, post-confirmation litigation, and held that a liquidating trust created pursuant to a Chapter 11 plan and related trust agreement could not unilaterally waive the debtor corporation’s attorney client privilege without the reorganized debtor’s consent.