The attorney-client privilege is the oldest privilege recognized by common law. In the corporate context, the attorney-client privilege exists between control group-officers and corporate counsel. That privilege extends to communication collected from lower level employees which encourages the frank communication to gather all relevant information to adequately advise the corporate client. But does information gathered from an employee after termination enjoy that privilege? The Upjohn rationale for the attorney-client privilege erodes when the sole focus of privilege focuses on an attorney-client relationship. Specifically, the Washington Supreme Court deviated from the Upjohn rationale which corrodes the fundamental principles of the attorney-client privilege. This comment explains the long-standing tradition that attorney-client privilege extends beyond the agency relationship and evaluates how the Washington Supreme Court’s latest opinion frustrates the spirit of the Upjohn and privilege rationales.
Brandon Villa, Check Your Privilege: The Big Blow to Corporate Internal Investigation in the Post-Upjohn Era, 52 UIC J. Marshall L. Rev. 125 (2018)