Elise Bernlohr Maizel

Volume 75, Issue 2, 373-411

Privilege is a choice. In crafting evidentiary privileges, courts and policymakers have fashioned

a rule that concedes that some things are more important than getting to the truth. Indeed, our

entire law of privilege stems from the fact that society deems certain relationships important

enough to protect their communications even from the truth-seeking process of litigation. The

attorney-client relationship is a paradigmatic example. But something has gone seriously wrong

with the law’s attempts to transplant protections for an intimate, confessional space for

communications between an individual and their attorney onto “artificial creatures of the law”:

the modern corporation.

Today’s corporate attorney-client privilege now shields communications across entire

constellations of relationships among corporate agents. And as the lines between business and

legal advice blur and lawyers become ubiquitous in all aspects of corporate life, an even greater

universe of documents and communications may fall outside the bounds of litigation. Privilege

logs often obscure the true nature of withheld communications and only moneyed litigants may

be able to call an over-withholder’s bluff.

This Article proposes a sea change in the corporate privilege by arguing that courts should

restrict recognition of the corporate attorney-client privilege to communications that take place

in the context of a Privileged Communications Committee. While some scholars have called for

the complete elimination of the privilege for corporate clients, this Article takes a more nuanced

view, recognizing that some of the needs underlying the original impetus for the privilege still

exist in the corporate context. The problem is that courts have landed on the wrong corporate

analog for a human client. The use of a Privileged Communications Committee would serve to

reset the balance, drawing the reality of the corporate privilege closer to the judicially articulated

justifications for its existence.