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The attorney-client privilege is an important tool for disclosure for communications. Its’ purpose, “to encourage clients to make full disclosure to their attorneys” makes corporate counsel sometimes difficult. For corporate counsel, whether a communication is protected by this privilege is complicated by the fact that a corporation is not considered an individual, but an “artificial creature of law.”
In an article by InsideCounsel, they explained the following 3 concerns regarding attorney-client privilege:
1. Between whom are communications protected
This was answered by the Supreme Court in Upjohn Co. v. United States. They ruled that the attorney-client privilege, in the corporate context, can apply not only to communications between a lawyer and members of the corporation’s “control group”, or upper-level management, but also to communications with mid-level and low-level employees.
2. Whether the communication is the type to which the privilege could apply
What type of communication is protected was addressed by the Court of Texas Appeals, who said that attorney-client privilege only protects confidential communications. They clarified even more by stating that “[c]ommunications made in the presence of others who do not qualify as representatives of the client or the lawyer are not considered confidential.” Courts have also stated that this privilege “attaches in the corporate context if the purpose of the communication is to relay information for the purpose of seeking legal advice.”
3. Whether the communication is made in confidence
This is important because across jurisdictions, in the corporate context, a communication is protected by the attorney-client privilege only if it was confidential and if it was made for the purpose of seeking legal advice.