Court: No Privilege For In-House Regulatory Advice

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?