The Attorney-Client Privilege as Applied to Corporations

THE lawyer often finds himself at the entrance to a field that lacks markers, paths, or even a solitary footprint to show there were travelers before him.Perhaps the ground has never been crossed, or has long since been abandoned; but more commonly, there have been frequent visitors who left no trace.This last, one suspects, is the case with the subject matter of this analysis.No doubt the attorney-client privilege problems affecting corporations are mapped out in intra-office memos, in the practices of litigators, and in the thinking habits of judges."However, there are only a handful of modem decisions dealing directly with some of the difficulties that arise in applying the traditional rules of the privilege to corporations.It is generally assumed that corporations and other legal entities are entitled to the privilege just as much as individuals are.The idea seems to go unchallenged-perhaps because in law, as in life, many of the most deeply believed assumptions are unspoken.Indeed, one can imagine the response of the surprised practitioner to any suggestion that it be otherwise: "Why should a corporation not be entitled to the privilege?Cannot a corporation sue and be sued?Is it not punishable for its crimes?Does it not need legal advice of its own?How could it go about getting such advice if its confidences were not respected?It is an ancient rule that a master is privileged to consult with counsel through his servant, a principal through his agent-why not a corporation in the same way ?"These arguments certainly sound right as a matter of common law, and a few cases have so intimated.2 Moreover, the American statutes codifying the common law attorney-client privilege generally refer to the "client" rather than to a "person, ' 3 and perhaps a corporation would fit within th6 former tMember of the New York Bar. 1. Preservation of the privilege for corporate law departments was discussed in concise but illuminating fashion by Lawrence S.