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The Corporate Attorney-Client Privilege Survives

By Stanley S. Arkin and Charles Sullivan
May 24, 2005

The dangers to the proper functioning of the corporate attorney-client privilege in the wake of recent federal and state law enforcement activities have been well-documented and widely discussed. The year is not yet half over and already two reports on the issue have been produced and a third major inquiry is underway. A survey by the Association of Corporation Counsel disclosed that 30% of the respondents' corporate clients had 'personally experienced an erosion in protections offered by privilege/work product.' (http://www.acca.com/Surveys/attyclient.pdf). A similar survey of outside counsel conducted by the National Association of Criminal Defense Lawyers reported 47% of corporate clients had experienced such an erosion (http://www.criminaljustice.org/ public.nsf/freeform/publicwelcome?opendocument). Both organizations have taken up the difficult task of 'debunking the myth' that assertion of the privilege is inappropriate or a sign of guilt.

Meanwhile, the American Bar Association Presidential Task Force on the Attorney-Client Privilege has already held two public hearings as part of its mission “to educate policymakers and the general public on the importance of preserving the attorney-client privilege” (http://www. abanet.org/buslaw/attorneyclient/home.shtml.) Speakers indicated their concern at “the erosion of the protection of the attorney client and work product privilege,” described the privilege as “frayed and challenged,” and denounced “governmental efforts to weaken” it.

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