Corporation’s Attorney-Client Privilege Extends to Counsel’s Communications with “Functional Employees” Outside the Company

November 8, 2010Articles The Business Lawyer

Counsel conducting an internal investigation immediately face two related and important tasks: identifying the “client” group whose communications with counsel are within the attorney-client privilege exclusively held by the corporation and avoiding, through corporate Miranda warnings and other techniques, a subsequent claim by any of the interviewee-employees that they jointly hold the privilege because counsel represented them personally at the same time as representing the corporation. A corporation’s ability to fully and exclusively control the privilege is critical, whether to restrict and prevent discovery of employee statements by a civil adversary in order to limit exposure to liability and damages or conversely to be enabled to provide discovery and disclosure of employee statements to curry favor with law enforcement in an effort to avoid prosecution of the entity.

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