The In-House Advisor

  • Confidential Communications With In-House Counsel Are Not Always PrivilegedMarch 16, 2017

    Next to a person’s Fifth Amendment right to remain silent, the attorney-client privilege is probably the most well recognized legal doctrine out there. Nevertheless, there are many nuances surrounding the privilege about which even seasoned lawyers are not very familiar. One of these deals with the fact that not all private communication between an attorney and client are privileged – even when the communications involve the most confidential and sensitive information. In order to understand why and how to handle situations where an attorney-client communication may... more

  • 3 Practical Challenges for Employers Created by Legalized MarijuanaFebruary 23, 2017

    When Massachusetts voters legalized the use of marijuana for medicinal purposes four years ago, the impact on most employers was limited to clarifying that “legal” marijuana use was still generally prohibited in the workplace. Now, Massachusetts has legalized limited use of recreational marijuana. Although the recreational marijuana use law also provides that employers may prohibit employees from reporting to work or performing work under the influence of marijuana, the new law is raising practical challenges for employers. Here are three ways that employers may consider... more

  • Be Sure to Observe Formalities to Protect Business AssetsFebruary 08, 2017

    When entering into a new venture, it is not uncommon for a new legal entity to be formed in order to insulate an existing company from the liabilities associated with the new business. While the law absolutely permits this, a recent case in the Bankruptcy Court, In Re Cameron Construction & Roofing, is a good reminder that achieving true insulation requires more than simply filing another set of Articles of Incorporation.In 2000, Cameron Construction & Roofing, Inc. (“Inc.”) was formed by Wilfred Cameron, who was the... more

  • Careful Drafting of Non-Competes and Other Restrictive Covenants Can Save the DayJanuary 04, 2017

    It generally is a defense to a breach of contract claim if the defendant proves that the plaintiff was the first one to materially breach the parties’ agreement. As a recent case from the Business Litigation Session of the Massachusetts Superior Court confirms, however, a plaintiff seeking to enforce a post-employment restrictive covenant can avoid falling victim to such a defense – if, that is, the company has a carefully crafted agreement is in place. In United Salvage Corp. of America v. Kradin, United Salvage... more

  • Corporate Individual Creating a Privileged Communication May Not Control Waiving ItDecember 07, 2016

    While companies, like people, are entitled to protect privileged communications with their counsel, companies only can act through individuals. So what happens when the former CEO wants to disclose a privileged communication he had with his company’s corporate counsel? As SEC v. Present highlights, if the company does not want that communication disclosed, the former CEO may be barred from making such a disclosure. Howard Present was the co-founder and CEO of F-Squared Investments, and in this role he routinely consulted with the company’s outside... more

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