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The purpose of this paper is to evaluate in‐house counsel's dual role in the context of a wrongful discharge claim against his corporate employer and its effect on privileged corporate communications.

The paper takes the form of legal research and analysis.

A multipart factors test is proposed focusing on three areas: first, rationale for discharge; second, in‐house counsel's claim; and third, risks to privileged corporate information.

The paper creates new means to evaluate corporate privilege and in‐house counsel access.

The corporate disclosure decision is one of the most difficult decisions any corporation, its management and counsel will face. If a corporation learns that it or one of its employees has engaged in a fraud or crime, the corporation, through its officers and directors, must decide whether it should disclose the fraud or crime to the government and, if the decision to disclose is made, what the scope of the disclosure should be. These decisions are fraught with dangers which threaten to expose the corporation and its employees to civil and criminal liability.

This paper seeks to describe and assess recent legal developments that affect the corporate attorney‐client privilege.

Discusses and analyzes the corporate attorney‐client privilege and work product doctrine and the role of such protections in US society; discusses how recent developments including policies of the US Department of Justice and the evolving role of corporate auditors have adversely affected these protections, and shows how some of these developments can be ameliorated so as to preserve the important principles underlying the corporate attorney‐client privilege.

The upsurge of investigations into alleged corporate criminality has reignited the debate over the value of the privilege and the ability to have confidential communications between corporations and clients. Although judicial decisions do not favor adoption of a “selective waiver” doctrine, concerns have also been raised that legislative adoption of a selective waiver in this current culture‐of‐waiver environment may practically prevent companies from ever being able to assert a privilege again in governmental investigations.

A useful update on developments affecting the attorney‐client privilege and work product doctrine from a lawyer who specializes in securities litigation and governmental enforcement and is a member of the New York State Bar Association Task Force on the Attorney Client Privilege as well as Liaison from the Corporate Counsel Consortium to the American Bar Association Task Force on the Attorney Client Privilege.