Axioms of the Attorney-Client Privilege in the Corporate Setting

May 31, 2001

Although corporations are entitled to rely on the attorney-client privilege, corporate lawyers should remember several axioms that limit the privilege in situations where its assertion would be tempting.

For instance, in one recent decision the court reiterated the axiom that “a document sent from one corporate officer to another is not privileged simply because a copy is sent to counsel.” In re Central Gulf Lines, No. 97-3829 c/w 99-1888 SECTION: “E” (4), 2000 U.S. Dist. LEXIS 18019, at *6 (E.D. La. Dec. 4, 2000).

Legal assistants or young associates might well withhold from production documents falling into this category. However, such documents might or might not be privileged, depending on the reason why the documents were sent to counsel—which normally requires a more in-depth analysis than simply seeing the corporate lawyer’s name next to a “cc” on the document. Some litigants learn this lesson to their regret in later proceedings in which their adversary challenges the litigant’s privilege assertion.