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UC Law Journal

Abstract

Privilege is a choice. In crafting evidentiary privileges, courts and policymakers have fashioned a rule that concedes that some things are more important than getting to the truth. Indeed, our entire law of privilege stems from the fact that society deems certain relationships important enough to protect their communications even from the truth-seeking process of litigation. The attorney-client relationship is a paradigmatic example. But something has gone seriously wrong with the law’s attempts to transplant protections for an intimate, confessional space for communications between an individual and their attorney onto “artificial creatures of the law”: the modern corporation.

Today’s corporate attorney-client privilege now shields communications across entire constellations of relationships among corporate agents. And as the lines between business and legal advice blur and lawyers become ubiquitous in all aspects of corporate life, an even greater universe of documents and communications may fall outside the bounds of litigation. Privilege logs often obscure the true nature of withheld communications and only moneyed litigants may be able to call an over-withholder’s bluff.

This Article proposes a sea change in the corporate privilege by arguing that courts should restrict recognition of the corporate attorney-client privilege to communications that take place in the context of a Privileged Communications Committee. While some scholars have called for the complete elimination of the privilege for corporate clients, this Article takes a more nuanced view, recognizing that some of the needs underlying the original impetus for the privilege still exist in the corporate context. The problem is that courts have landed on the wrong corporate analog for a human client. The use of a Privileged Communications Committee would serve to reset the balance, drawing the reality of the corporate privilege closer to the judicially articulated justifications for its existence.

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