The corporate attorney-client privilege: third-rate doctrine for third-party consultants

ProfessionalAcademi

Advocacy in the Court of Public Opinion, Installment One: Broadening the Role of Corporate Attorneys

Today legal controversies are tried in the "court" of public opinion as much as in any court of law. Corporate lawyers' traditional tendency, however, has been to attempt to compartmentalize legal activities from public relations (PR) activities. To date, however, there has been little systematic evidence gathered on the role corporate lawyers are playing in the court of public opinion for their clients' legal controversies and little sustained examination of the implications of these trends. In the first installment, the author focuses on how the court of public opinion can shape legal controversies and how general counsels actually manage legal PR for their corporate clients. In the second installment, the author highlights some examples of wrongdoing by corporate attorneys. Given that the court of public opinion is an extra-legal decision-maker, an alternate forum for administering justice, the author contends that corporate lawyers should behave socially responsibly when advocating there and promote socially responsible behavior on the part of their corporate clients

Advocacy in the court of public opinion, installment two: how far should corporate attorneys go?

Professiona

Taking the Business Out of Work Product

Over the past fifteen years, a common set of questions has surfaced in different areas of scholarship about the breadth of the corporate attorney\u27s role: Should the corporate attorney provide business advice when providing legal advice? Should the corporate attorney provide counsel related to other disciplines such as public relations, social responsibility, morals, accounting, and/or investment banking? Should the corporate attorney prevent corporate wrongdoing? Questions like these resound in the scholarship addressing the risks and benefits of multi-disciplinary partnerships, gatekeeping, moral counseling, ancillary services, and the application of the attorney-client privilege. When looked at in combination, these segregated discussions equate to an unidentified but burgeoning debate about the proper role of the corporate attorney and whether a distinction can or should be made between doing business and practicing law. This debate also exists in court opinions assessing the reach of recent SEC regulations, the work product doctrine, and the attorney-client privilege. Indeed, the application of the doctrine assessing these issues provides a lens through which to view the tensions created by the increasingly transdisciplinary and globalized role of the corporate attorney and the changing contours of litigation. To that end, by analyzing a sampling of federal court opinions that address the work product doctrine in the context of work related to public relations, this Article seeks to show that variations in how the doctrine is applied reflect disagreement about how expansive the role of today\u27s corporate attorney and the definition of litigation should be. Further, given that judges can make decisions about work product protection based on their often narrow view of the proper role of an attorney as opposed to a businessperson, this Article argues that distinguishing between business and law when analyzing the work product doctrine is not only arbitrary and impossible in the corporate law context, but also inappropriate. This is clear when considering the history and purpose of the work product doctrine and the current application of the corporate attorney-client privilege. Therefore, the more elementary goal of this Article is to offer a refined approach to the work product doctrine in the corporate law context to better align it with the reality of corporate practice, corporate litigation, and the expanded role of the corporate lawyer in today\u27s society. Although this Article offers a preliminary recommendation for a new work product test, its primary recommendation is that courts take the business prong out of the work product analysis entirely so that (1) courts do not attempt to make a distinction between business and law when analyzing whether work is protectable and (2) the application of the doctrine does not hinge on a judge\u27s view of how expansive corporate practice or litigation is or should be. The more ambitious goal of this Article, however, is to urge those in the legal profession to begin a comprehensive discussion about the proper role of the corporate attorney and to consider whether, as the responsibilities and expectations of corporate lawyers grow, and as our definition of litigation expands, the law\u27s protective doctrines should follow suit