Important issues about the attorney-client privilege of general counsel may be emerging from the California courts.

The strange case involves the general counsel and vice president of Marvell Semiconductor, who—during acquisition negotiations with Jasmine Networks—failed to hang up his speakerphone after leaving a voicemail for a lawyer at Jasmine. The sensitive conversation was of course recorded by Jasmine, which then sued Marvell based on the recording.

McGuckin

Citing the attorney-client privilege, Marvell tried to prevent Jasmine from referring to the conversation in the case. But the courts claim that Marvell waived the privilege, and that in fact no such privilege exists as crime or fraud was at play—Marvell was allegedly looking to steal Jasmine's trade secrets and hire away its key employees.

According to John McGuckin, chairman of the Association of Corporate Counsel, the case "creates a dangerous precedent" for GCs who also have a corporate title. Earlier this month, McGuckin submitted an amicus brief noting that the courts emphasized Marvell's GC was also acting as a vice president. As a result, McGuckin asks, are companies where the GC is also an officer at greater risk of waiver? His letter is below.

Download The Letter From The Association Of Corporate Counsel

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