Attorney-Client Privilege: Clients and Client-Agents (Federal)

by Thomas E. Spahn, McGuireWoods LLP with Practical Law Litigation

A Practice Note examining who constitutes a client or client-agent for the purposes of the attorney-client privilege under federal law, with a focus on defining the client in an organizational setting. This Note discusses how courts identify the client in various entities, including corporations and governmental agencies. It details the standards for determining whether an employee's communications with counsel fall within the organization's privilege, explaining the Upjohn test from Upjohn Co. v. U.S., 449 U.S. 383 (1981) and the more restrictive control group test. This Note also explores how the privilege analysis extends to communications with former employees, employees of affiliated organizations, and outside consultants. It further addresses who controls the privilege after significant corporate changes, such as dissolution, bankruptcy, stock sales, and asset sales. Finally, this Note clarifies the concept of client-agents, outlining the differing judicial views on when a third party's involvement in a communication may not waive the privilege.