In an evolving legal environment marked by heightened enforcement and regulatory scrutiny, the foundational doctrines of attorney-client privilege and work product protection continue to face significant challenges. Attorneys Ian M. Comisky of Fox Rothschild LLP and Bryan C. Skarlatos of Kostelanetz LLP explore critical developments, including enforcement actions that probe client identities, expanding interpretations of the crime-fraud exception, and new judicial and ethical pressures on privilege claims. This session offers a circuit-by-circuit analysis of how privilege and protection are being defined and contested, including search warrants targeting privileged records, as well as the ethical and professional responsibilities attorneys face when withdrawal, disclosure, or whistleblowing may be required. The program will also cover emerging issues relating to the use of artificial intelligence and the dangers to the attorney client privilege and work product protections. Ideal for litigators and in-house counsel alike, this program equips practitioners with practical guidance to navigate these complex issues and confidently safeguard client and firm interests.
- Overview
- Overview of attorney-client privilege and its modern challenges
- The increasing scrutiny on attorneys in regulatory and enforcement contexts
- Framing privilege within today’s compliance and technology landscape
- Basics of Attorney-Client Privilege & Work Product Doctrine
- Core elements and requirements of attorney-client privilege
- Key limitations, including business vs. legal advice distinctions
- Work product doctrine: scope, purpose, and key differences from privilege
- The Kovel doctrine and use of third-party professionals
- Gatekeeper Initiative & FinCEN Residential Real Estate Rule
- U.S. anti-corruption strategy and the “gatekeeper” concept
- AML and KYC expectations for attorneys and other professionals
- Overview of FinCEN’s Residential Real Estate Reporting Rule
- Tension between reporting obligations and confidentiality duties
- Attorney Ethics Rules & AI Considerations
- Ethical duties of confidentiality vs. evidentiary privilege
- ABA Model Rules developments and risk-based client assessment
- “Willful blindness” and heightened due diligence expectations
- AI-related risks: hallucinations, privilege waiver, and recent case law
- Hypothetical 1: Kovel Privilege Under Scrutiny
- Application of privilege to accountants and other third-party agents
- Distinguishing legal advice from non-privileged services
- Responding to summonses and subpoenas targeting third-party communications
- Hypothetical 2: Client Identity & Disclosure Obligations
- Limits of privilege in protecting client identity
- John Doe summons and compelled disclosures
- Circuit splits and practical implications
- Hypothetical 3: AI Use and Privilege Waiver
- Whether use of AI tools waives privilege
- Confidentiality concerns with third-party platforms
- Emerging judicial treatment of AI-assisted communications
- Conclusion
- Key takeaways on privilege protection and risk management
- Practical guidance for navigating evolving obligations
- Q&A (As Time Permits)
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Fox Rothschild LLP
Mr. Comisky is the Chair of International Compliance with the law firm of Fox Rothschild LLP. Mr. Comisky concentrates his practice in the areas of civil and criminal tax litigation, anti-money laundering compliance and complex corporate and commercial litigation. Mr. Comisky is the co-author of Tax Fraud and Evasion, which was reissued in December of 2023 and contains chapters dealing with money laundering, asset forfeiture, attorney client privilege and work product issues, as well as domestic and international compliance issues. Read More ›
Kostelanetz LLP
For forty years, Bryan has focused his practice on civil and criminal tax matters and other white collar criminal investigations and prosecutions. Clients often hire him as an expert on tax standards, penalties, and procedures. Read More ›
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Status: Approved
Credits: 1.00 Ethics
Status: Approved
Credits: 1.00 Legal Ethics
Status: Approved
Credits: 1.00 Ethics
Status: Approved
Credits: 1.00 Professional Responsibility - Ethics / Civility / Professionalism / Sexual Harassment Prevention
Status: Approved
Credits: 1.00 Legal Ethics
Status: Approved
Credits: 1.00 Ethics and Professionalism
Status: Approved
Credits: 1.20 Ethics
Status: Approved
Credits: 1.00 Professional Responsibility
Status: Approved
Credits: 1.00 Ethics and Professional Conduct
Status: Approved
Credits: 1.20 Ethics/Professionalism
Status: Approved
Credits: 1.00 Ethics
Status: Approved
Credits: 1.00 Attorney Professional Conduct
Status: Approved
Credits: 1.00 Ethics, Professionalism, or Substance Abuse
Status: Approved
Credits: 1.00 Legal Ethics
Status: Approved
Credits: 1.00 Legal Ethics/Professional Responsibility
Difficulty: All Levels
Status: Approved
Credits: 1.00 Total: 0.75 General, 0.25 Legal Ethics/Professional Responsibility
Status: Approved
Credits: 1.00 Ethics
Status: Approved
Credits: 1.20 Total: 0.80 General, 0.40 Legal Ethics, etc.
This presentation is approved for one hour of Ethics CLE credit in Alaska, one hour of Legal Ethics CLE credit in California, one hour of Ethics CLE credit in Hawaii, one hour of Professional Responsibility - Ethics / Civility / Professionalism / Sexual Harassment Prevention CLE credit in Illinois, one hour of Legal Ethics CLE credit in Louisiana, one hour of Ethics and Professionalism CLE credit in Maine, one hour of Ethics CLE credit in Missouri, one hour of Professional Responsibility CLE credit in Nebraska, one hour of Ethics and Professional Conduct CLE credit in Nevada, one hour of Ethics CLE credit in North Carolina, one hour of Attorney Professional Conduct CLE credit in Ohio, one hour of Ethics, Professionalism, or Substance Abuse CLE credit in Pennsylvania, one hour of Legal Ethics CLE credit in Rhode Island, one hour of Legal Ethics/Professional Responsibility CLE credit in South Carolina (all levels), one hour of Ethics CLE credit in Vermont, and one hour of total CLE credit in West Virginia, of which 0.40 credit hours will apply to Legal Ethics, etc. credit. This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 1.20 hours of total CLE credit. Of these, 1.20 qualify as total hours of credit for Ethics/Professionalism. This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.00 credit hours, of which 0.25 credit hours will apply to Legal Ethics/Professional Responsibility credit.
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