EDITOR’S DESK

The general counsel’s role has steadily expanded over the last three decades, to the point where they are major players in the business operations of the companies they counsel. Nevertheless, they are still attorneys, and preserving the attorney-client privilege for the advice they offer is more important than ever. In this issue of Today’s General Counsel columnist Todd Presnell discusses a federal case in which in-house attorneys failed so badly in that respect that the judge who ruled on the matter took it upon himself to explain how they could have protected the document in question.

The potential for outside directors to waive attorney/client privilege by another avenue, communicating through the wrong medium, is the topic of an article by Noah Kressler and Lacey Rochester. They advise general counsel to pay close attention to a recent Delaware Court of Chancery decision on privilege.

Molly Doran examines another corporate communication, proxy statements. Properly organized and designed, they can answer regulators’ questions at the same time they’re guiding stockholders. Jessie Zeigler and Sarah Miller consider a court decision that opens the door to liability for products that the defendant neither made nor controlled, and Christopher Sloan and Andrew Droke discuss the unique risks associated with the engagement of offshore technical and business process vendors. Data protection is the main consideration, but jurisdictional issues that complicate litigation that might arise are important too.

Background checks are something that general counsel will almost certainly have to consider sometime. Lester S. Rosen answers questions that come up regarding due diligence, Ban the Box laws, and violations of the Fair Credit Reporting Act, which has become the basis for an increasing number of class actions.

Bob Nienhouse, Editor-In-Chief