Allegheny County Court of Common Pleas Senior Judge R. Stanton Wettick Jr.’s recent ruling in Red Vision Systems v. National Real Estate Information Services, No. 14-0411 (Comm. Pls. Feb. 26, 2014), that the attorney-client privilege does not apply to corporations no longer in business has garnered significant attention, including an appeal and the filing of amicus briefing by the Association of Corporate Counsel. The ACC, which represents more than 33,000 in-house lawyers from more than 10,000 organizations, warns that allowing Wettick’s ruling to stand “would substantially inhibit the full and frank exchange of relevant information necessary for corporations to receive effective sound legal assistance.” However, Wettick’s opinion is hardly an outlier and corporate communications with counsel are subject to disclosure in many circumstances inapplicable to an individual’s relationship with his or her attorney.
The challenge to Wettick’s ruling rests principally on the argument that dissolved corporations should be treated the same as deceased individuals for purposes of the protection of confidential communications. Since the U.S. Supreme Court’s ruling in Swidler & Berlin v. United States, 524 U.S. 399 (1998), courts have continued to protect a person’s private conversations with their lawyer from disclosure after death. Corporations are even more dependent upon attorneys than individuals, particularly in light of the increasing number of regulations with which they must comply. Attorneys depend on the candor and openness of the officers of the corporations they represent and, according to the ACC, “abolishing the privilege after an entity’s death will affect its interests before its death by interfering with its ability to obtain sound legal advice and effective representation.” Corporate representatives who have fewer assurances that their communications will remain confidential are less likely to be fully candid.
