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Book Chapter

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The attorney-client privilege protects information a client provides an attorney in confidence for the purpose of securing legal advice. But suppose the client is not a person but a corporation and can only speak through its agents and employees. What then are the contours of the privilege? If the corporation's attorney asks an employee for information relating to pending litigation or other legal matters, is the conversation privileged? Some courts said that no communications to a corporate attorney were privileged unless they came from members of the corporate control group, loosely those people who had authority to direct the attorney's activities in connection with legal matters. Other courts said that the identity of the communicator was less important than the subject matter of the communication, and that even the communications of a lower level employee to corporate counsel would be protected, if they pertained to the employee's duties, if they were relevant to the corporation's need for legal advice, and if the employee had been directed by appropriate corporate authority to speak to counsel on the matter.

Suppose that you were counsel to a major corporation, and you wanted to investigate a matter that might have serious legal ramifications for your company, where many of the facts were in the possession of lower-echelon field employees. How would you proceed? What communications would you expect to be protected? Would you fight the matter all the way to the Supreme Court if the lower courts ordered you to share with the Internal Revenue Service (IRS) your notes of confidential communications between you and these employees? Gerard Thomas proceeded with great care to build the strongest case possible for claiming the privilege, and when two lower courts refused that claim, he appealed-successfully-to the United States Supreme Court, forever changing what corporate communications are privileged and the way corporate law is practiced. The case was Upjohn Co. v. United States, 449 U.S. 383 (1981).

Publication Citation

Paul Rothstein, The Story of Upjohn Co. v. United States: One Man's Journey to Extend Lawyer-Client confidentiality, and the Social Forces that Affected it, in EVIDENCE STORIES: (Lempert, Richard, ed., New York: Foundation Press, 2006)