CEO, CFO, COO ... Cube Dweller? Attorney-Client Privilege and Corporate Communication: Whose Communications Should Massachusetts Law Protect?
Flynn, Lisa Borelli, Suffolk University Law Review
"[S]o numerous and complex are the laws by which ... citizens are governed, so important is it that they should be permitted to avail themselves of the superior skill and learning of those who are sanctioned by the law as its ministers ... without publishing those facts, which they have a right to keep secret, but which must be disclosed to a legal adviser ... to enable him successfully to perform the duties of his office, that the law has considered it the wisest policy to encourage and sanction this confidence, by requiring that on such facts the mouth of the attorney shall be for ever sealed." (1)
"The attorney-client privilege is the oldest of the privileges for confidential communications." (2) The privilege is essential to the success of the attorney-client relationship and the ability of an attorney to provide competent representation to clients. (3) There must be, however, a balance between protecting client confidences and fulfilling the truth-seeking function of the discovery process. (4) Over the past several decades, courts have struggled to find this balance in the application of attorney-client privilege to corporations. (5)
Courts have faced unique issues in applying attorney-client privilege--a privilege generally associated with communication between persons--to the form of the corporation, technically a legal fiction. (6) Yet, a corporation as a fictional entity can only act through its employees. (7) The dilemma thus arose of how far down into the corporate structure to apply the privilege. (8) Courts developed two main tests for defining the privilege's scope in the corporate setting: the narrow "control group" test and the broader "subject matter" test. (9)
In Upjohn Co. v. United States, (10) the Supreme Court rejected the "control group" test, pronouncing it too narrow an application of privilege law with regard to corporations. (11) Upjohn gives broader protection to confidential communications by employees who supply information to corporate counsel that is relevant to a particular legal action. (12) Upjohn, however, is binding only in federal question cases that use federal common law to decide privilege questions. (13) Upjohn does not bind state courts and many states do not follow it, having adopted the control group test, a modified subject matter test, or no definitive approach at all. (14) Massachusetts has not considered how to apply the privilege within a corporation, but has confronted like questions with respect to corporations--namely the issue of ex parte contact with employees of a corporation in connection with professional ethics matters. (15)
Part II of this Note discusses the current state of attorney-client privilege law with respect to corporate communications. (16) It first provides a brief overview of privilege law and introduces the public policy argument that the pursuit of truth in litigation demands restriction of attorney-client privilege rather than expansion to cover more communications, especially within the corporate context. (17) It then outlines the development of the two basic tests for determining the scope of corporate privilege and discusses the Upjohn decision and its effect on the approaches of various states. (18) Part II goes on to explain Massachusetts's approach to an analogous issue and introduces Commissioner of Revenue v. Comcast Corp., (19) a case the Massachusetts Supreme Judicial Court (SJC) recently decided that involved questions of privilege with respect to corporate communications involving third-party consultants. (20) While the SJC did not specifically address the scope of attorney-client privilege within the corporate structure in this case, its discussion demonstrates that determining the boundaries of corporate privilege is an unresolved issue in Massachusetts. (21)
Part III of this Note analyzes which test best balances the valued function of attorney-client privilege with the essential truth-seeking function of discovery. …