It is universally acknowledged that communications between corporate counsel (both in-house and outside counsel) and employees of the corporation are protected by the corporation's attorney-client privilege. The corporation, a fictitious legal entity, has no way of communicating with its attorney except through its agents -- its officers and employees. Therefore, when the purpose an agent's communication with corporate counsel is to obtain legal assistance for the corporation, the privilege protects all communications relating to that individual's corporate responsibilities. Upjohn Co. v. United States, 430 U.S. 383 (1981). In the federal courts, and the vast majority of state jurisdictions, this is referred to as the "subject matter" test for determining who personifies the corporation.

However, a few states, like Illinois, cling to the "control group" test for defining who personifies the corporate client in communications with corporate counsel. This test limits the scope of the privilege protection to corporate counsel's communications with corporate representatives who will control, or take a substantial part in, the actions which the corporation may take upon the advice received. This test has generally been rejected because its scope is believed to be too ambiguous. Each decision will be influenced (although not necessarily controlled) by the hierarchical structure of each corporation, the issues being addressed, and the unique circumstances of each delegation. For a discussion of the test followed in each state and the District of Columbia, see P.R. Rice, Attorney-Client Privilege: State Law, § 4:11, et seq. (Rice Publishing 2000). For a complete discussion of both the "control group" and subject matter tests, see P.R. Rice, Attorney-Client Privilege in the United States, §§ 4:12 - 4:14 (West Group 2^nd ed. 1999).

Regardless of the test employed -- control group or subject matter -- if an employee comes within the scope of the prevailing test and then leaves the corporation's employ, are subsequent communications with the former employee on matters relating to his former corporate responsibilities still protected by the privilege? While there is a split of authority on this issue, the prevailing view seems to be that the communications are not protected.

The privilege protection is generally denied because its application will have no impact on the former employee's willingness to provide information to corporate counsel. Therefore, extending it will only result in the suppression of relevant evidence with no superceding benefit. As one court explained:

The willingness [of former employees] to provide information is unrelated to the directions of their former corporate superior, and they have no duty to their former employer to provide such information. It is virtually impossible to distinguish the position of a former employee from any other third party who might have pertinent information about one or more corporate parties to a lawsuit.

Nevertheless, a number of courts have shown a receptivity to the extension of the privilege's protection to former employees. In doing so, however, they have made little effort to justify the result in light of the purpose of the attorney-client privilege. See In re Allen, 106 F.3d 582 (4^th Cir. 1997); In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 658 F.2d 1355 (9^th Cir. 1981). See generally, P.R. Rice, Attorney-Client Privilege in the United States, § 4:18 (West Group 2^nd ed. 1999). In both Allen and Coordinated Pretrial, the courts extended the privilege protection to corporate counsel's communications with ex-employees for the sole reason that such persons "may possess relevant information needed by corporate counsel to advise the client" and should be encouraged to communicate openly. To these courts the rationale of the privilege is as applicable to past employees as it is to current employees.

Looking at the question only from the perspective of corporate counsel's need for information, the logic of Allen and Coordinated Pretrial is facially compelling. The only problem is that if corporations continue to focus judicial attention by drawing parallels between past and current employees, they may find themselves hoist by their own petard. When the issue of the scope of the privilege protection is more appropriately looked at from the perspective of the rationale for the attorney-client privilege, parallels between current employees, past employees and third parties ultimately makes a far more compelling case for abolishing the corporate privilege altogether rather than extending its protection to former employees!