Privilege with Low Level Corporate Employees

A corporation is legally a person, and can be the client of an attorney.  This raises the question of when a communication between an officer or employee of the corporation on the one hand, and the corporation’s attorney on the other, are deemed privileged.  It is generally accepted that communications between attorneys and owners or managers of the corporation are privileged, so long as other elements of the attorney-client privilege such as confidentiality are met.

However, communications between the corporation’s attorney and lower-level employees raise a more complicated question.  Whether those communications are protected by the attorney-client privilege depends on whether the communications (1) were made at the direction of corporate superiors, (2) were made by corporate employees, (3) were made to corporate counsel acting as such, (4) concerned matters within the scope of the employee’s duties, (5) revealed factual information not available from upper-echelon management, (6) revealed factual information necessary to supply a basis for legal advice, and whether the communicating employee was sufficiently aware that (7) he was being interviewed for legal purposes, and (8) the information would be kept confidential.

These are factors for the court to consider, and a “yes” or “no” answer to any one of these questions does not necessarily mean the communication is or is not privileged.  However, these factors generally limit the privilege to communications with lower-level employees if it relates to factual information only they have (for example if they were eye witnesses), and if the employees know they are having confidential communications with an attorney. 

These factors do not apply to communications with former employees of the corporation, unless some other principal-agent relationship exists between the two.  Communications between the corporation’s attorney and former employees are usually not privileged.  If they had communications while the former employee was still employed by the corporation, those communications would be privileged.

However, if the corporation’s attorney has communications with an agent of the corporation, such as an independent contractor, the factors above are still considered in determining whether the communications are privileged.  Thus, for example, if an employee ended their employment relationship with the corporation, but went on to become an independent consultant for the corporation, the privilege could still exist.