The Attorney-Client Privilege and the Corporate Client: Where Do We Go After Upjohn?

Part I of this Note examines two of the more popular standards, the Seventh Circuit’s “subject matter test” and the Eighth Circuit’s “modified subject matter test” and concludes that neither approach is entirely consistent with the purposes of the privilege. Part II argues that the courts should adopt the Eighth Circuit’s test with two further modifications. One revision is but a demand for clarification and consistency: the courts should explicitly adopt Dean Wigmore’s legal advice requirement for corporate clients. The other modification is more radical: the command requirement should be eliminated. Under this approach, every employee may stand in the position of the client for purposes of the privilege. The Note argues that these modifications will better enable attorneys to provide sound legal advice, assist attorneys in ensuring that corporations comply with the law, and prevent attorneys from becoming repositories of undiscoverable information.