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Belmont Law Review

Authors

Heath Henley

Abstract

When does attorney-client privilege protect communications between an attorney and her client’s former employee? Unfortunately, there is no simple answer to this question. In federal courts, privilege over communications with current employees is generally governed by the subject-matter test. Under this legal doctrine, communication is privileged when it regards subject matter within the scope of the employee’s position. The rationale for the doctrine is that it is often the lower level employees who will have the information that an attorney needs. Extending the doctrine to former employees, however, has caused courts to stumble as they have attempted to reconcile evidentiary privilege and the corporate entity. The difficulty reconciling these two theories has resulted in a split among courts as to what the scope of privilege should be with former employees. Attorneys will increasingly face circumstances where communication with a former employee is necessary. This is a function of at least three trends. First, the workforce turnover rate is significantly higher for the current generation than it was for past generations. Second, the backlog of cases in federal courts is continuing to grow, increasing the median wait-time. And third, the increasingly complex regulatory environment that businesses operate in makes it necessary for corporate attorneys to access a wide range of corporate knowledge in order to give fully informed legal advice. The consequence is that an employee is more likely to leave before an attorney speaks with him and employees that have left are more likely to have information that is necessary for the corporate attorney. There are currently three different approaches that courts have taken to the issue of corporate attorney-client privilege with former employees. This has resulted in some courts treating former employees no differently than any third-party witness, while some have extended privilege to only information gathering communications, and still others have extended protection to the same extent as current employees. This note proposes that the inconsistency is a symptom of the tension between three variables: corporate attorney-client doctrine, evidentiary privilege rationale, and the corporate-entity theory. Furthermore, this note concludes that extending privilege to former employees under the subject-matter test is the most logically sound approach. To this end, Part I of this note provides a brief overview of how evidentiary privilege theory, corporate-entity theory, and the corporate attorney-client privilege developed. Part II categorizes and describes the three divergent approaches that courts have taken to assertions of privilege with former employees, and Part III explains how these divergent approaches reveal the tension between corporate-entity theory and evidentiary doctrine. Finally, this note concludes by suggesting that the most theoretically and doctrinally sound approach is to apply the privilege to communication with former employees to the same extent that the privilege is applied to communications with current employees.

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