The corporate attorney-client privilege, well developed in our jurisprudence, may be an endangered species, under attack on a number of fronts. Despite having been firmly established by the United States Supreme Court in its opinion in Upjohn v. United States, the Department of Justice ("DOJ") and regulators have tried to make assertion of the attorney-client privilege by investigated companies painful. Commentators similarly continue to criticize application of the privilege to corporate entities. Finally, internationally many countries do not provide an equal degree of protection to corporate attorney-client communications, particularly when the "attorney" is a company's inhouse counsel. This lack of observance of the privilege by certain countries may undermine effective use of the privilege by companies involved in cross-border investigations.
Robert J. Anello, Preserving the Corporate Attorney-Client Privilege: Here and Abroad, 27 Penn St. Int'l L. Rev. 291 (2008).