1. If corporations have no Fifth Amendment privilege against self-incrimination, why should they be provided with an attorney-client privilege?
2. Doesn't the existence of a corporate privilege in the end provide some natural persons with greater privileges than others? Consider two gas stations. One is a sole proprietorship and the other is incorporated. An accident occurs in each of the gas stations that is observed only by an employee. Is the communication between the gas station's lawyer and the employee privileged when the gas station is a sole proprietorship? Is the communication privileged when the gas station is incorporated?
3. Doesn't the expansion of the corporate privilege in the Upjohn case beyond the control group mean that corporate communications can be rendered nondiscoverable simply by being funneled through corporate counsel?4. The expansion of the corporate privilege in Upjohn is intended to encourage communication between employees and corporate counsel. Is it really likely to do so? Does the employee control the privilege? Could he keep his communications with corporate counsel from being turned over to the authorities in order to submit him to civil or criminal liability? Should corporate counsel give employees a Miranda-like warning about the consequences of disclosure? If the only real purpose of the corporate privilege is to encourage counsel to seek out information from employees, why isn't the work-product privilege enough?