Does the Attorney-Client Privilege Survive a Corporation’s Death?

January 13, 2010

In today’s economic environment, courts must sometimes address the privilege effect of a corporation’s dissolution.

In TAS Distributing Co. v. Cummins Inc., Case No. 07-1141, 2009 U.S. Dist. LEXIS 93750 (C.D. Ill. Oct. 7, 2009), an inventor deposed a lawyer who had worked with the inventor and a company which had acquired licensing rights to the invention — but was dissolved in the 1980s. The lawyer claimed privilege protection for his communications with company employees. The court explained that the attorney-client privilege “survives the death of a client when the client is a natural person,” but cited several cases in concluding that “[a]bsent some compelling reason to the contrary, the attorney-client privilege does not survive the death of the corporation” — so the lawyer could not refuse to answer the deposition questions. Id. at *4, *5.

Lawyers should remember that they generally will not be able to prevent discovery of their communications with employees of deceased corporate clients.