Court Explores Separate Attorney-Client Relationship Between a Company’s Lawyer and a Company Executive

September 6, 2000

A lawyer who represents a corporation has an attorney-client relationship with the entity itself, and not with any of the entity’s officers, directors or employees. On the other hand, such a lawyer can have privileged conversations with any of these individuals—although the privilege belongs to the company and not to the individuals.

In some situations, company executives have an incentive to argue that they had a separate attorney-client relationship with the company’s lawyer. This would give the executive the power to assert the privilege covering such communications even if the company wanted to waive the privilege and disclose the information (usually to a government investigator).

In nearly every case, this argument fails. In Securities & Exch. Comm’n v. Credit Bancorp, Ltd., 96 F. Supp. 2d 357, 359 (S.D.N.Y. 2000), for instance, a company’s CEO claimed that he had a separate attorney-client relationship with the company’s general counsel. The general counsel argued otherwise, noting that the CEO had not approached him for “individual legal advice on any issue” and denying that he had provided such advice to the CEO. The court agreed that there was no separate attorney-client relationship, meaning that the CEO could not assert the privilege covering his communications with the general counsel.

A careful corporate lawyer will forestall this debate by making it clear during discussions with company employees that the lawyer represents the company and does not have a separate attorney-client relationship with the individual. Failing to make this disclosure risks harming the corporate client by forfeiting its power to assert or waive the privilege.