This paper extends Monroe Freedman's idea of the criminal lawyer's "perjury trilemma" to current issues faced by corporate lawyers dealing with perceived pressures on the attorney-client privilege. The duties of criminal defense and corporate lawyers are more similar than they often seem. Corporate lawyers' duties of honesty in dealing with third parties are closely analogous to criminal lawyers' duties of honesty in dealing with a court. Both sets of lawyers also have an important interest in fostering open communications with their clients. Where their situations differ is not with respect to lawyer obligations but with respect to their clients' rights. Corporations, for example, lack a privilege against self-incrimination possessed by individual criminal defendants. Further, many current issues of corporate fraud involve information not privileged at all because of the crime-fraud exception. Finally, corporate clients have a power to compel employees to disclose personally adverse information without the encouragement offered by protecting the information as privileged. These differences between rights of corporate clients and those of individual criminal defendants should lead corporate lawyers to rely less on arguments analogous to those of the "perjury trilemma" as they respond to today's perceived pressures on the corporate attorney-client privilege.
GW Paper Series
GWU Legal Studies Research Paper No. 186
Thomas D. Morgan, The Corporate Lawyer and 'The Perjury Trilemma,' 34 Hofstra L. Rev. 965 (2006).