Summary
A corporation's communications with counsel may be protected by the attorney-client privilege. This privilege belongs to the corporate entity alone. The executives who communicate acquire no personal privilege. Consequently, if a corporation waives its privilege, its executives' communications become discoverable. Not only may those communications, thereafter, be used as evidence against the corporation, but they may also be asserted against the executive who made them. Executives thus face a dilemma. If they avoid cooperating with corporate counsel, they risk adverse job consequences. On the other hand, providing unreserved, frank, veracious information could leave them vulnerable if the corporation later waives its privilege. This article examines the current law concerning executive-corporate counsel relationships. Although a personal attorney-client privilege can arise for the executive, the conditions apply only in atypical situations. In most cases, the executive's dilemma remains. This Article advocates limiting the scope of corporate privilege waiver. The proposed rule should have a positive effect on executive-corporate counsel relations.
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Extract
A Proposal for Protecting Executive Communications with Corporate Counsel After the Corporate Client has Waived Its Attorney-Client Privilege
INTRODUCTION
A corporation's communications with counsel may be protected by the attorney-client privilege.1 This privilege belongs to the corporate entity alone.2 The executives who communicate acquire no personal privilege.3Consequently, if a corporation waives its privilege, its executives' communications become discoverable.4 Not only may those communications, thereafter, be used as evidence against the corporation, but they may also be asserted against the executive who made them.5 In a criminal investigation, for example, the corporation can strike a deal with prosecutors conditioned on full government access to corporate records, with a corresponding waiver of privilege.6 Subsequently, the executives who communicated, whether they understood the limits of corporate privilege confidentiality or not, might find that their statements formed the basis of criminal charges brought against them, as individuals.7Executives thus face a dilemma. If they avoid cooperating with corporate counsel, they risk adverse job consequences. On the other hand, providing unreserved, frank, veracious information could leave them vulnerable if the corporation later waives its privilege. What are they to do? The law of attorney-corporate client privilege does not provide an adequate answer. This Article will suggest one.At the outset the current law concerning executive-corporate counsel relationships will be examined. Although a personal attorneyclient privilege can arise for the executive, the conditions apply only in atypical situations.8 In most cases, the executive's dilemma remains.Thus, a change in the law is warranted: one that provides protection for communicating executives while respecting the boundaries of the attorney-corporate client privilege. To that end, a proposal will be offer...See the full content of this document
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