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- Title
ALTERNATIVE LITIGATION FINANCE AND THE ATTORNEY-CLIENT PRIVILEGE.
- Authors
GIESEL, GRACE M.
- Abstract
The United States legal system has a new player: the alternative litigation finance (ALF) entity. In recent years ALF entities have begun providing financing for small-scale matters and also complex commercial matters involving millions of dollars. The recent success of ALF has been assisted by the fact that at least in some jurisdictions it is now clear that perceived historical barriers to ALF such as champerty, usury, and ethics precepts do not, in fact, block ALF. With ALF arrangements becoming more commonplace, questions have emerged about the effect the integration of ALF entities into attorney-client relationships has on the attorney-client privilege. This Article explores traditional attorney-client privilege doctrine to determine whether the privilege protects communications involving ALF entities. This Article concludes that ALF entities cannot benefit from the joint client doctrine because they, in fact, are not joint clients. Even if ALF entities sought to be joint clients, ethical principles likely would not allow joint client status in the investment decision stage of the relationship and might not allow it in the monitoring stage of the relationship. ALF entities likely cannot benefit from the allied party-common interest doctrine for communications in the investment decision stage but might be able to avail themselves of this doctrine for communications in the monitoring stage if the particular court involved uses a broad definition of common interest. In addition, an ALF entity would not likely be found to be an agent of the client or lawyer such that privilege protection would include it. Ultimately, this Article concludes that privilege doctrine should not be stretched to reach the ALF scenario because to do so would damage the privilege itself. Rather, if the involvement of ALF entities in the legal market is sufficiently beneficial and if there is a sufficient need for privilege protection, an independent ALF privilege might be the best solution.
- Subjects
UNITED States; THIRD party litigation funding; ATTORNEY-client privilege; LEGAL costs; JUSTICE administration; ACTIONS &; defenses (Law); USURY; ATTORNEY &; client; MAINTENANCE &; champerty; ECONOMICS
- Publication
Denver University Law Review, 2015, Vol 92, Issue 1, p95
- ISSN
0883-9409
- Publication type
Article