5 ms·

Why on earth would we afford any sort of attorney-client privilege to a business entity? Maybe it's time to have another talk about what exactly the public is g

Why on earth would we afford any sort of attorney-client privilege to a business entity? Maybe it's time to have another talk about what exactly the public is getting from this limited liability thing.

ggm 5y ago
A lot of the law depends on narrow specificity. I know that as an individual I want "all the badness" uncovered, but the same rules around discovery apply to corporate entities as individuals. If you want to change this, be wary of the (law of) unintended consequences. A charge should be narrow and specific. If you get a wide warrant, then sure: all the words should be open to view. But if the problem is financial then the IPR mails are not relevant, its the finance mails you need to be shown. Hiding finance mails in IPR mails would be a crime probably. The warrant to finance probably includes these, by implication. Once you are required to present, its fair to incur a cost outcome of "how narrowly can we respond and not be in the wrong" Because we don't punish people for as-yet unknown crimes, in this process. Attorney-Client privilege goes to asking your Attorney about how narrow the responses can be, and still be legal. Sort-of, the underlying question is "why did we allow corporate entities to become legal 'persons' in the first place" ? I am not a lawyer. Find a lawyer to tear this line of reasoning apart, it is probably a low-bar goal.
- verve_rat 5y ago
  >I know that as an individual I want "all the badness" uncovered, but the same rules around discovery apply to corporate entities as individuals. The point is: why? Corporate entities and individuals follow the same rules because we (read: societies, governments, parliaments) decided that would be the case. But is that the best outcome? Should we revisit that decision?
  - ggm 5y ago
    which is why I asked: > Sort-of, the underlying question is "why did we allow corporate entities to become legal 'persons' in the first place" ?
    - thfuran 5y ago
      Because that was the most straightforward legal mechanism for achieving all kinds of desirable things like forming any sort of contract at all with a company as a whole rather than one of its employees or holding a company liable for damages resulting from actions of its employees.
      - ggm 5y ago
        sort of, in my mind, like why public limited companies had to emerge, in order to drive some outcomes. unlimited risk investment wasn't attractive even with upsides. as a child, I understood "corporation" to mean "town council" and entirely wanted the products, which tended to public utility functions. I didn't actually understand corporate in any other sense for years.
- dragonwriter 5y ago
  > Sort-of, the underlying question is "why did we allow corporate entities to become legal 'persons' in the first place" ? Largely, Because it makes it easier to figure out whom to sue if someone is upset at them, and who should sue if they are upset at someone.
colejohnson66 5y ago
Because they are literally a client of the lawyers. We can argue about corporate personhood, but the definition of “attorney client privilege” is very clear. It’s not “attorney human privilege.”
- mountainb 5y ago
  Employees are not clients. Executives are not clients. The company is the client. Employees and executives are there to be sacrificed for the company in issues like this. The go-to defense just about always involves throwing the minions to the wolves to protect the shareholders.
- verve_rat 5y ago
  That makes sense to protect the rights of individuals, but why should those same rights be extended to businesses? Maybe the world would be a better place if companies (and government departments) couldn't protect communications with legal counsel? I haven't put in enough thought to have a coherent position, but the argument for the current arrangements seem to boil down to "because that is how it always was". Maybe corporate personhood brought along the rights of human personhood and maybe that is a good thing, but it seems to have just happened by default. Maybe we should debate if attorney client privilege is a privilege of clients, or of humans?
  - berberous 5y ago
    The point of attorney client privilege is to encourage the client to get the advice of counsel, who can hopefully guide the client to staying within the law. That policy goal applies equally well for both individuals and corporations. It is not some handout to corporations.
    - staticman2 5y ago
      I had a law professor say in his opinion the reason there is no mandatory reporter exception for attorney client privilege like there is for doctors and teachers is simply the fact that attorneys write the laws and are protecting each other.
dragonwriter 5y ago
> Why on earth would we afford any sort of attorney-client privilege to a business entity? The same reason we do to any other person, juridical or natural. Why would we create a special exception?
- panavision 5y ago
  I commented years ago regarding the single-sided nature of hackernews, in which you stepped in to present your existence on this site as a thwart to my argument. To which, you are as transparent now as you've ever been.
adrr 5y ago
Should the same thing apply to a government entity? Government isn't a person. Should google be able to get all the DOJ lawyer emails in discovery?
- dragonwriter 5y ago
  > Should the same thing apply to a government entity? It does. > Government isn't a person. Legally, it is. And has been longer than business entities have been.
  - adrr 5y ago
    You’re going to need to back that up with a court case especially when the constitution explicitly mentions government for example the 1st amendment.
    - dragonwriter 5y ago
      > You’re going to need to back that up with a court case Back what up? That government entities have juridical personhood? Sure, see U.S. v. … well, anyone, actually: being able to be a party to lawsuit (except being the defendant in an in rem suit like civil forfeiture) requires legal personhood. > especially when the constitution explicitly mentions government for example the 1st amendment How does the reference to Congress in the first Amendment have any bearing on anything being discussed?
      - adrr 5y ago
        Are your arguing for against that corporations shouldn’t have attorney client privileges due to the fact they aren’t a real person?

ggm 5y ago

A lot of the law depends on narrow specificity. I know that as an individual I want "all the badness" uncovered, but the same rules around discovery apply to corporate entities as individuals. If you want to change this, be wary of the (law of) unintended consequences. A charge should be narrow and specific. If you get a wide warrant, then sure: all the words should be open to view. But if the problem is financial then the IPR mails are not relevant, its the finance mails you need to be shown. Hiding finance mails in IPR mails would be a crime probably. The warrant to finance probably includes these, by implication. Once you are required to present, its fair to incur a cost outcome of "how narrowly can we respond and not be in the wrong" Because we don't punish people for as-yet unknown crimes, in this process. Attorney-Client privilege goes to asking your Attorney about how narrow the responses can be, and still be legal. Sort-of, the underlying question is "why did we allow corporate entities to become legal 'persons' in the first place" ? I am not a lawyer. Find a lawyer to tear this line of reasoning apart, it is probably a low-bar goal.

verve_rat 5y ago
>I know that as an individual I want "all the badness" uncovered, but the same rules around discovery apply to corporate entities as individuals. The point is: why? Corporate entities and individuals follow the same rules because we (read: societies, governments, parliaments) decided that would be the case. But is that the best outcome? Should we revisit that decision?
- ggm 5y ago
  which is why I asked: > Sort-of, the underlying question is "why did we allow corporate entities to become legal 'persons' in the first place" ?
  - thfuran 5y ago
    Because that was the most straightforward legal mechanism for achieving all kinds of desirable things like forming any sort of contract at all with a company as a whole rather than one of its employees or holding a company liable for damages resulting from actions of its employees.
    - ggm 5y ago
      sort of, in my mind, like why public limited companies had to emerge, in order to drive some outcomes. unlimited risk investment wasn't attractive even with upsides. as a child, I understood "corporation" to mean "town council" and entirely wanted the products, which tended to public utility functions. I didn't actually understand corporate in any other sense for years.
dragonwriter 5y ago
> Sort-of, the underlying question is "why did we allow corporate entities to become legal 'persons' in the first place" ? Largely, Because it makes it easier to figure out whom to sue if someone is upset at them, and who should sue if they are upset at someone.

colejohnson66 5y ago

Because they are literally a client of the lawyers. We can argue about corporate personhood, but the definition of “attorney client privilege” is very clear. It’s not “attorney human privilege.”

mountainb 5y ago
Employees are not clients. Executives are not clients. The company is the client. Employees and executives are there to be sacrificed for the company in issues like this. The go-to defense just about always involves throwing the minions to the wolves to protect the shareholders.
verve_rat 5y ago
That makes sense to protect the rights of individuals, but why should those same rights be extended to businesses? Maybe the world would be a better place if companies (and government departments) couldn't protect communications with legal counsel? I haven't put in enough thought to have a coherent position, but the argument for the current arrangements seem to boil down to "because that is how it always was". Maybe corporate personhood brought along the rights of human personhood and maybe that is a good thing, but it seems to have just happened by default. Maybe we should debate if attorney client privilege is a privilege of clients, or of humans?
- berberous 5y ago
  The point of attorney client privilege is to encourage the client to get the advice of counsel, who can hopefully guide the client to staying within the law. That policy goal applies equally well for both individuals and corporations. It is not some handout to corporations.
  - staticman2 5y ago
    I had a law professor say in his opinion the reason there is no mandatory reporter exception for attorney client privilege like there is for doctors and teachers is simply the fact that attorneys write the laws and are protecting each other.

dragonwriter 5y ago

> Why on earth would we afford any sort of attorney-client privilege to a business entity? The same reason we do to any other person, juridical or natural. Why would we create a special exception?

panavision 5y ago
I commented years ago regarding the single-sided nature of hackernews, in which you stepped in to present your existence on this site as a thwart to my argument. To which, you are as transparent now as you've ever been.

adrr 5y ago

Should the same thing apply to a government entity? Government isn't a person. Should google be able to get all the DOJ lawyer emails in discovery?

dragonwriter 5y ago
> Should the same thing apply to a government entity? It does. > Government isn't a person. Legally, it is. And has been longer than business entities have been.
- adrr 5y ago
  You’re going to need to back that up with a court case especially when the constitution explicitly mentions government for example the 1st amendment.
  - dragonwriter 5y ago
    > You’re going to need to back that up with a court case Back what up? That government entities have juridical personhood? Sure, see U.S. v. … well, anyone, actually: being able to be a party to lawsuit (except being the defendant in an in rem suit like civil forfeiture) requires legal personhood. > especially when the constitution explicitly mentions government for example the 1st amendment How does the reference to Congress in the first Amendment have any bearing on anything being discussed?
    - adrr 5y ago
      Are your arguing for against that corporations shouldn’t have attorney client privileges due to the fact they aren’t a real person?