Although the subject of academic debate, many scholars agree that the privilege against self-incrimination arose in part from growing opposition to the ecclesiastical oath during the seventeenth century. Invoking the Latin phrase nemo tenetur prodere seipsum, meaning no one is bound to accuse himself, criminal defendants began refusing courts’ mandate that they take an oath and answer the prosecution’s questions. This opposition evolved into a common-law evidentiary privilege and ultimately a constitutional right embedded in the Fifth Amendment.
Fast forward to the twenty-first century, courts want in-house lawyers to take an oath—not to answer questions about criminal wrongdoing but to prove with specificity that the attorney–client privilege protects from disclosure their communications with corporate employees. The oath in these situations surfaces in the form of an affidavit or a sworn declaration, and the in-house lawyer should consider—at the time of asserting a privilege objection—whether she is willing to supply a sworn statement in defense of the objection. The answer is often pivotal to securing privilege protection.
In my Privilege Place column published in Today’s General Counsel, I discuss in-house lawyers’ evidentiary burden to secure privilege protection for their employee communications–and when they should first consider this important issue. You may read the article as part of the entire issue at this link, or via PDF here.