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70 Cath. U. L. Rev. 39 (2021)
The Attorney-Client Privilege and Former Employees

handle is hein.journals/cathu70 and id is 45 raw text is: THE ATTORNEY-CLIENT PRIVILEGE AND FORMER EMPLOYEES Douglas R. Richmond+ I. ORGANIZATIONAL CLIENTS AND THE ATTORNEY-CLIENT PRIVILEGE .........41 A. The Control Group Test .......................................................................41 B. The Subject Matter Test........................................................................43 C. The Modified Harper & Row Test, Diversified Industries Test, or Modified Subject Matter Test..............................................................44 II. THE PRIVILEGE AND FORMER EMPLOYEES OF AN ORGANIZATIONAL CLIENT ................................................................................................................46 A. Background and Overview ...................................................................46 B. Recognizing the Privilege in the Former Employee Context ...............48 C. A Narrower View of the Privilege's Application to Former Employees ............................................................................................................51 D. Rejecting the Privilege in the Former Employee Context....................54 III. RECOMMENDATIONS FOR LAWYERS ..........................................................60 IV. CONCLUSION .............................................................................................64 The attorney-client privilege protects essential communications between clients and their lawyers from unwelcome and sometimes potentially ruinous exposure. Reflecting its importance, observers have described the attorney- client privilege as one of the legal profession's crown jewels. The attorney- client privilege applies to (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.2 Privileged persons include the client or prospective client, the lawyer, agents of the client or prospective client and the lawyer who facilitate communications between them, and agents of the lawyer who assist in the client's representation.3 Organizational clients, like individuals, are entitled to assert the attorney- client privilege concerning communications within its scope.4 For example, ' Managing Director, Aon Professional Services, Overland Park, Kansas. J.D., University of Kansas. Opinions expressed here are solely those of the author. 1. John M. Barkett, Attorney-Client Privilege, LITIG., Winter 2019, at 34, 34. 2. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 68 (AM. L. INST. 2000). 3. Id. § 70. 4. As countless courts have recited in opinions, the attorney-client privilege belongs to the client. See, e.g., Fiduciary Tr. Int'l of Cal. v. Klein, 216 Cal. Rptr. 3d 61, 67 (Ct. App. 2017); Ross v. Ill. Cent. R.R. Co., 129 N.E.3d 641, 653 (Ill. App. Ct. 2019); Att'y Grievance Comm'n of Md. v. Powers, 164 A.3d 138, 151 (Md. 2017); Crossman v. Trs. of Fayetteville Tech. Cmty. Coll., 832 S.E.2d 223, 236 (N.C. Ct. App. 2019) (quoting In re Miller, 584 S.E.2d 772, 788 (N.C. 2003)); Burnham v. Cleveland Clinic, 89 N.E.3d 536, 541 (Ohio 2016); Commonwealth v. McCullough, 39

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