Court Holds That a Corporation, and not a Corporate Employee, Owns the Attorney-Client Privilege Covering Communications Between the Company’s Lawyer and the Employee

February 16, 2001

The attorney-client privilege can protect communications between a company’s lawyers and its employees. However, it is important to distinguish between the existence of the privilege and who can assert or waive it.

In In re Grand Jury Proceedings, 219 F.3d 175, 185 (2d Cir. 2000), the court reiterated the general rule that a corporation owns the privilege that protects from disclosure communications between the company’s lawyers and its employees. This distinction can become critical if the corporation wants to disclose the communication but the individual employee does not. In Grand Jury Proceedings, the court explained that “where a corporation waives its privilege but an officer wishes to assert that privilege as to his communications with corporate counsel—we have held that the privilege belongs to the corporation, not to the agent.”

Lawyers representing corporations should always be careful to identify their client (the corporation itself) when the lawyers speak with corporate employees, and should bear in mind that the corporation controls the assertion or waiver of the privilege.