(finding that Brown Brothers Harrison was inside privilege protection; "Another exception to the rule that disclosing attorney-client communications to a third party destroys the privilege is when an expert, such as an accountant or, as in this case, an investment banker, is employed to assist a lawyer in rendering legal advice."; "The court in Cavallaro [Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002)], however, stressed that the third-party's assistance must be nearly indispensable or serve some specialized purpose in facilitating attorney-client communications."; "In late 2007, Crane engaged the financial services firm of Brown Brothers Harriman & Co. (BBH) to assist Crane in acquiring NV's patents. The acquisition as a whole involved more than $100 million and BBH was paid $1.25 million for its services."; "Attorney James Hackett was outside counsel to Crane and provided legal advice regarding the acquisition of NV's intellectual property. In his declaration, Attorney Hackett addresses the communications in dispute that he and other attorneys from his law firm exchanged with representatives from BBH from June to September 2008 concerning the acquisition of NV's patents. He states, 'I shared legal advice with Crane's advisors at BBH, in strict confidence, where it was necessary for BBH to facilitate our provision of legal advice.'. . . The communications with BBH were in part concerning the drafting of 'the agreements necessary to accomplish the acquisition.'"; "The court here, following the holding of the First Circuit in Cavallaro [Cavallaro, 284 F.3d at 249], finds that those communications that included BBH, counsel, and Crane that were made in order to facilitate communication between Crane and its attorneys for the purpose of seeking legal advice, that were indispensable to the provision of legal advice, and that were intended to be confidential, are protected."; "Applying the criteria from Cavallaro here, first, there is no question that the communications were intended to be confidential: the court credits the declaration of Attorney Hackett, that the communications were made in 'strict confidence,'. . . and the emails themselves demonstrate that the parties assumed they were confidentially sharing information. With regard to the purpose of the communications at issue, while BBH's engagement letter states only in relevant part that Crane hired BBH to 'assist in coordinating the activities of other professional firms whose services may be required by [Crane], including attorneys. . .", the court accepts Attorney Hackett's assertion that he understood that Crane hired BBH in part to facilitate the provision of legal advice to Crane . . . not only because he states it in his declaration but because the documents themselves demonstrate that Attorney Hackett in fact persistently asked BBH for help in crafting legal advice. The court finds that the advice as related to the clients in the emails is legal advice, not business advice. Therefore, the communications at issue here are for the primary purpose of communicating with the attorney and not with the banker."; "While the First Circuit has not decided a case directly on point, there are cases holding that in certain circumstances financial advisors are 'indispensible' to the provision of legal advice."; "Here, unlike in Ackert [U.S. v. Ackert, 169 F.3d 136 (2nd Cir. 1999)], where an investment banker approached a client with an unsolicited business deal, Crane specifically retained BBH to assist in a particular transaction. The information that BBH was providing cannot be said to have 'somehow come to' Crane's attorneys from a third party . . . . BBH's participation was sought by the client, in part, to assist the attorney. It was more than merely 'important,' as according to Crane's attorney, BBH's advice was necessary, or required, for him to render advice to his client.")
| Case Date |
Jurisdiction |
State |
Cite Checked |
| 2017-02-03 |
Federal |
MA |
|