Grace M. Giesel

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The attorney-client privilege protects certain communications between attorney and client from compelled disclosure. The privilege applies to clients who are individuals as well as to corporate clients. The lawyers providing legal services to corporations may be outside attorneys who are employees of law firms. Many corporations, however, rely on in-house attorneys for many, if not all, of their legal needs. Often, in-house attorneys have official responsibilities that involve them in the management of the company. Even if the attorneys do not have official nonlegal responsibilities, the corporation may seek the opinion of inhouse attorneys with regard to all sorts of issues, some of which may be clearly legal issues, some of which may be clearly business issues, and some that are a jumble of both. Even outside attorneys sometimes hold positions within the management of corporations. Likewise, corporations may consult outside attorneys, whether or not they have management responsibility, not only with regard to legal issues but also business issues or issues involving a mix of business and legal considerations.

While the legal profession should perhaps cheer this evolution of roles and duties, the application of the attorney-client privilege in the corporate representation environment creates problems because the tradition of the privilege requires that it apply only to a communication involving a lawyer in his or her professional legal capacity and only if the communication relates to obtaining or rendering legal advice, services, or assistance. Courts have not agreed in defining the kinds of services rendered by attorneys that the privilege protects. Nor have courts acted consistently and uniformly in dealing with communications containing a mix of advice, service, and assistance. The resulting confusion in this area of privilege law has proved to be fertile ground for some courts' reliance upon antiquated notions about what attorneys do and particularly what attorneys, inside and out, do for corporate clients. Some courts have exhibited significant bias against corporations and particularly against in-house counsel, relying on assumptions based on status and supposed probabilities. The resultant uncertainty of whether the privilege applies in particular corporate settings threatens the privilege's ability to create the positive impact of client disclosure and, therefore, a positive impact on the justice system, the raison d'etre of the privilege.