The Corporate Attorney-Client Privilege: Loss Of Predictability Does Not Justify Crying Wolfinbarger

Abstract:     
The corporate attorney-client privilege is woven in fragile logic. A privilege protection designed to encourage a client to speak freely with an attorney is given to an entity that cannot speak and denied to those who speak for that entity. A privilege, historically construed narrowly to avoid the unnecessary suppression of relevant evidence, is extended to an entity whose management and employees have independent economic incentives to seek legal advice and speak with the lawyer from whom that advice is sought. A recent proposal to reassess the fiduciary duty exception to the corporate privilege, premised on the protection?s diminished predictability, is, at best, ethereal and runs the serious risk of unraveling our legal fiction?s best kept secret--that the emperor is wearing no clothes.

The author has written two other treatises on the attorney-client privilege, P.R. Rice, Attorney-Client Privilege in the United States (West Group 2nd ed. 1999) and Attorney-Client Privilege: State Law (Rice Publishing 2000) (on computer diskettes). For more information about the treatises, readers could refer to his webpage: acprivilege.com

Accepted Paper Series