Recent cases from opposite sides of the pond illustrate the potential for losing LPP. In Travelers Insurance Company Ltd v Armstrong & Anor [2021] EWCA Civ 978, an assignment of professional negligence claims against solicitors and counsel to an opponent in litigation enti- tled the assignee to documents which were the subject of joint privilege of the assignor and its insurers. (Link: www.legalrisk.co.uk/News.) The case is of some concern. Similar issues may arise in corporate transactions where a company is sold.
In United States v. Holmes, No. 5:18-cr-00258-EJD-1, 2021 U.S. Dist. LEXIS 98060 (N.D. Cal. May 21, 2021), a claim to privilege by Elizabeth Holmes, the founder of Theranos, a high profile tech company which collapsed in a sea of fraud allegations, failed because the lawyers advising were retained by the company, not Holmes. (The history is recounted by John Carreyrou in Bad Blood: Secrets and Lies in a Silicon Valley Startup.) This risk also needs addressing carefully when a partnership or LLP seeks legal advice to oust a member.
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