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65 Yale L.J. 953 (1955-1956)
The Attorney-Client Privilege as Applied to Corporations

handle is hein.journals/ylr65 and id is 981 raw text is: THE ATTORNEY-CLIENT PRIVILEGE AS APPLIED TO
THE lawyer often finds himself at the entrance to a field that lacks markers,
paths, or even a solitary footprint to show there were travelers before him.
Perhaps the ground has never been crossed, or has long since been abandoned;
but more commonly, there have been frequent visitors who left no trace.
This last, one suspects, is the case with the subject matter of this analysis.
No doubt the attorney-client privilege problems affecting corporations are
mapped out in intra-office memos, in the practices of litigators, and in the
thinking habits of judges. However, there are only a handful of modem de-
cisions dealing directly with some of the difficulties that arise in applying the
traditional rules of the privilege to corporations.
It is generally assumed that corporations and other legal entities are entitled
to the privilege just as much as individuals are. The idea seems to go un-
challenged-perhaps because in law, as in life, many of the most deeply be-
lieved assumptions are unspoken. Indeed, one can imagine the response of the
surprised practitioner to any suggestion that it be otherwise: Why should a
corporation not be entitled to the privilege? Cannot a corporation sue and be
sued? Is it not punishable for its crimes? Does it not need legal advice of
its own? How could it go about getting such advice if its confidences were
not respected? It is an ancient rule that a master is privileged to consult
with counsel through his servant, a principal through his agent-why not a
corporation in the same way ?
These arguments certainly sound right as a matter of common law, and a
few cases have so intimated.2 Moreover, the American statutes codifying the
common law attorney-client privilege generally refer to the client rather
than to a person,'3 and perhaps a corporation would fit within th6 former
tMember of the New York Bar.
1. Preservation of the privilege for corporate law departments was discussed in
concise but illuminating fashion by Lawrence S. Apsey, Esq., at the Practicing Law
Institute's llth Annual Summer Session, July, 1952, in New York City. See PLI,
2. Stewart Equipment Co. v. Gallo, 32 N.J. Super. 15, 107 A.2d 527 (L. 1954);
Ex parte Schoepf, 74 Ohio St. 1, 77 N.E. 276 (1906) ; Mayor & Corp. of Bristol v. Cox,
26 Ch. D. 678, 682 (1884); cf. United States v. Louisville & Nashville R.R., 236 U.S.
318, 336 (1915); Lalance & Grosjean Mfg. Co. v. Haberman Mfg. Co., 87 Fed. 563,
564 (C.C.S.D.N.Y. 1898); Robertson v. Virginia, 181 Va. 520, 539, 25 S.E.2d 352, 360
(1943). Usually the point is assumed without discussion. E.g., McWilliams v. American
Fidelity Co., 140 Conn. 572, 581, 102 A.2d 345, 349 (1954); cf. Consolidated Theatres,
Inc. v. Warner Bros. Cir. Management Corp., 216 F.2d 920 (2d Cir. 1954).
3. See the listing of statutes in 8 WIGMORE, EVIDENCE § 2292 (3d ed. 1940) (herein-
after cited as WIGMORE). The English Companies Act of 1948 codifies the privilege-

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