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Attorney-Corporate Client Privilege, Spring 2026 ed.
Description
Attorney-Corporate Client Privilege is the definitive practice resource for counsel advising corporate clients on protecting confidential communications—and for litigators seeking to pierce those protections. Drawing on the landmark Upjohn v. United States framework and decades of federal and state case law, this treatise delivers step-by-step analytical tools for every stage of privilege assessment, from the initial client communication to trial.
Whether you represent the corporation or are litigating against one, this treatise provides authoritative guidance on:
- Establishing and asserting the corporate privilege. A proven two-step process for determining which corporate communications qualify as privileged, including how to meet the burden of proof, use privilege logs, and conduct in camera inspections—with guidance drawn from the Upjohn factors and their application in federal and state courts.
- Controlling and protecting the privilege. Analysis of who holds, controls, and may waive the corporate attorney-client privilege—including boards of directors, executives, in-house counsel, bankruptcy trustees, and parent-subsidiary structures—and when a communicating executive may assert a separate personal privilege.
- Distinguishing privileged from non-privileged communications. Practical frameworks for separating legal advice from business communications, addressing the heightened scrutiny applied to in-house counsel, and analyzing mixed legal/business communications, insurance-related matters, tax shelter issues, and patent practice.
- Waiver—voluntary, inadvertent, and intracorporate. Comprehensive coverage of waiver doctrine under Rule 502(b), including risks from intracorporate circulation of privileged materials, e-mail and digital communications, disclosure to government agencies, and strategies for managing waiver risk when cooperating with government investigations.
- The Crime-Fraud Exception. A two-step framework for establishing the exception, assessing wrongful corporate intent, analyzing internal investigations, and navigating grand jury proceedings.
- The Garner Good Cause Exception. How fiduciary relationships—including shareholder-director, ERISA beneficiary-trustee, and agent-principal—can override the corporate privilege, with factor-by-factor analysis of when good cause will be found.
- The Work Product Doctrine in corporate practice. Full treatment of the doctrine's application to corporations, including anticipation of litigation, intracorporate investigations, insurance claims files, opinion work product protection, and waiver—including bad faith insurance cases and disclosure to testifying experts.
The treatise includes attorney-client privilege checklists and practice forms for immediate use in structuring corporate communications and responding to privilege disputes.
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