CORPORATE CRIME REPORTER
The
Case for the Elimination of the Corporate Attorney-Client Privilege
21 Corporate Crime Reporter 13, March 20, 2007
Ah, the sanctity of the corporate attorney-client privilege.
The corporate lawyers would make you think it’s enshrined in the Constitution, equivalent to our First Amendment rights.
The corporate lobby has put the Justice Department on the defensive – so much so that odds are that a Democratic Party controlled Congress will pass legislation prohibiting any prosecutor from asking a corporation to waive it.
In fact, the privilege is based on mythology and ought to be scrapped.
That’s the view of Elizabeth Thornburg, a professor of law at the SMU Dedman School of Law in Dallas, Texas.
At least that was her view in almost 15 years ago when she penned a law review article titled “Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege,” 69 Notre Dame Law Review 157 (1993).
Professor Thornburg did not our calls seeking comment for this article.
In the Notre Dame Law Review article, Thornburg argues that the attorney-client privilege is “built on shifting sand.”
The purpose and effect of the privilege have reached “mythic proportions.”
And the myths “developed in the context of human clients have been transferred uncritically to corporate clients,” she wrote.
“Now is the time for the power of these myths to come to an end,” she declared.
At the end of a long analysis, Thornburg calls for the abolition of the corporate attorney-client privilege.
Of course, in the 25 years since she wrote the paper, the power of the corporate privilege has grown.
And if the corporate lobbyists get their way, that power will threaten federal efforts to crack down on corporate crime, according to several scholars, including University of Florida Law Professor Michael Seigel and Columbia Law Professor John Coffee.
In herNotre Dame Law Review article, Professor Thornburg deconstructs the myths upon which the privilege is built.
“When all the mythology is stripped away, precious little remains,” she writes. “The corporate attorney-client privilege can provide only the most marginal increase in employee-attorney communications. In the great majority of cases, the privilege is needed neither to encourage the client to talk nor to encourage the lawyer to listen. The corporate privilege protects no moral interest in privacy or autonomy. Additionally it imposes tremendous costs not only on the litigants but also on the entire judicial system. Without the myths, we have to admit that we have nurtured a doctrine whose costs exceed its benefits, and we need to respond with change. The question remaining is not whether, but how much, change is required.”
“It is time to bite the bullet and eliminate the corporate attorney-client privilege,” she concludes. “Without the mythology, we are left with an ugly edifice that helps organizations with wealth and power retain what they possess.”
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