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Does Corporate Attorney-Client Privilege Extend to Company Executive?
The rise and fall of Theranos and its founder, Elizabeth Holmes, was a gripping corporate drama. The resulting prosecution of Holmes and a co-defendant is now generating issues of interest for white-collar practitioners, as we discussed not long ago. See, Elkan Abramowitz and Jonathan S. Sack, "The Importance of 'Particulars' in Criminal Fraud Cases," N.Y.L.J. (March 3, 2020).
This article addresses a dispute between the government and Holmes that concerns the admissibility of communications between Holmes and outside company counsel, Boies, Schiller Flexner (Boies). The government seeks to admit 16 documents to which Holmes has objected on the grounds of attorney-client privilege. The government has argued that Boies had an attorney-client relationship with the company, not with Holmes. Holmes has argued that Boies represented her personally, and consequently she retains a privilege that she will not waive.
This question — when does company counsel also represent a company executive — often comes up in white-collar issue investigations. The present dispute in the Holmes prosecution is an occasion to revisit first principles, particularly in the context of a company founder who, like other company founders, was so clearly associated with the company she led.
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