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The Attorney–Client Privilege And Former Employees: History, Principle, And Precedent, Heath Henley

Belmont Law Review

When does attorney-client privilege protect communications between an attorney and her client’s former employee? Unfortunately, there is no simple answer to this question. In federal courts, privilege over communications with current employees is generally governed by the subject-matter test. Under this legal doctrine, communication is privileged when it regards subject matter within the scope of the employee’s position. The rationale for the doctrine is that it is often the lower level employees who will have the information that an attorney needs. Extending the doctrine to former employees, however, has caused courts to stumble as they have attempted to reconcile evidentiary …