Court Exhibits Hostility to Corporations’ Privilege Claims

January 30, 2008

In a judicial approach that helped America become a global economic power, courts long ago began to treat corporations as if they were natural people. Not surprisingly, this approach eventually entitled corporations to assert the attorney-client privilege.

However, corporations may not find it as easy as natural people to successfully claim privilege protection. Most courts make it more difficult for in-house lawyers to establish that they are providing legal rather than business advice. Some courts take a more general approach. In Milinazzo v. State Farm Insurance Co., No. 07-21892-CIV-LENARD/TORRES, 2007 U.S. Dist. LEXIS 90980, at *10 (S.D. Fla. Dec. 11, 2007) (citation omitted), the court relied on an earlier Florida state court case in explaining that “[u]nlike a claim of attorney-client privilege made by an individual, a claim of privilege raised by a corporation is subject to a ‘heightened level of scrutiny.'”

Not every state takes this approach, but lawyers representing corporations should be prepared to overcome some courts’ hostility to privilege assertions — perhaps using one of the appellate remedies discussed in last week’s Privilege Point.