Attorney/Client » Court: No Privilege For In-House Regulatory Advice

Court: No Privilege For In-House Regulatory Advice

Business people around table

March 31, 2016

Where do you draw the line between legal advice and regulatory advice?  Or is there one? Black’s Law dictionary suggests maybe not. It defines a regulation as a rule or order “having the force of law,” observes Todd Presnell in his Presnell on Privileges blog. Nonetheless a federal court in Pennsylvania made the distinction, in a ruling that no doubt will provoke some controversy. In a case pitting the FTC against a pharmaceutical company, the court said that the company could not claim privilege for advice an in-house attorney gave regarding what the court characterized as “regulatory advice for a business purpose.” The question could arise, especially in a highly regulated industry: Is there any other kind?

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