Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege

Abstract

This article surveys the traditional justifications for giving corporations the benefit of attorney-client privilege. It rejects both moral and utilitarian explanations and argues that, far from being beneficial or benign, the privilege actually does great harm to the truth-seeking function of litigation and imposes tremendous transaction costs on the litigants and on the judicial system as a whole.

Keywords: privilege, attorney-client privilege, discovery, corporations, litigation ethics

JEL Classification: K41