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 protections diminished predictability, is, at best, ethereal and runs the serious risk of unraveling our legal fictions best kept secret--that the emperor is wearing no clothes.