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.