Vanderbilt Law Review

First Page



The attorney-client privilege protects confidential communications between client and attorney from forced disclosure.' Dating back to at least 1577, the privilege arose from the belief that it was a point of honor for the attorney to keep his client's confidences.'The modern rationale for the privilege, however, is the perceived need to encourage full and frank discussion between attorney and client by removing the fear of forced disclosure.' Thus, the privilege rests on the premise that the social benefits derived from uninhibited communication and from the attorney's access to all the facts outweigh the detrimental effects of concealing information during trial.' This premise is untested, however, and the modern trend to-ward expanded discovery militates toward a narrow construction of the privilege.'... This Recent Development traces the development of the principal tests utilized by federal courts to determine the applicability of the attorney-client privilege in the corporate setting and evaluates the various criticisms leveled at each test. After examining the recent trend toward broadening the scope of the privilege, the Recent Development analyzes decisions in the Third and Sixth Circuits that adhere to the traditional, stricter standards for invoking the privilege. Although the competing policies underlying the privilege and its limitations impede the formulation of a comprehensive standard, this Recent Development concludes that the Third and Sixth Circuit tests accord more nearly with modern concepts of liberal discovery and provide sufficient protection for the interests of the corporation.