Academic journal article Defense Counsel Journal

Analysis Still Necessary

Academic journal article Defense Counsel Journal

Analysis Still Necessary

Article excerpt

Case-by-case determination based on the principles underlying the privilege will resolve the applicability of the privilege, but a principled analysis still is necessary in many cases despite "clear" state rules and laws purportedly superseding the common law. The most prominent recent example of the Supreme Court's mandate is the tobacco litigation in Florida, American Tobacco Co. v. Florida, 697 So.2d 1249 (Fla.App. 1997). In ultimately deciding that the "privileged" communications of the lawyer and client were discoverable by virtue of the crime-fraud exception contained in the Florida evidentiary rules, the Florida Court of Appeal utilized an analysis nearly identical to that applied by the Eighth Circuit in the White House case and the Supreme Court in Upjohn.

The court stated:

Because the nature of the corporation differs significantly from the individual person, the attorney-client privilege will also differ in its application to the corporation and to the natural person. First, a corporation can only act through its agents, whereas a natural person can seek legal advice and then directly act (or not act) upon that advice. Second, a corporation relies on its attorney for business advice more than the natural person. Thus, it is likely that the "zone of silence" will be enlarged by virtue of the corporation's continual contact with its legal counsel. …

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