The issue of confidentiality of corporate attorney-client communications is less clear than communications by an individual client. This lack of clarity occurs because corporations, including condominium and homeowners' associations, speak and act through many mouths, not just one. Corporations are fictional legal entities, not human beings, and therefore must communicate through many people, specifically the corporation's officers, directors, employees and agents.

Courts are hesitant to broadly drape the shield of confidentiality. The privilege, though necessary to modern jurisprudence, does prevent relevant evidence from being heard. Thus, courts narrowly construe the privilege. A corporation is not entitled to claim that every action taken by someone on the corporation's behalf is privileged.

The question then becomes where do the courts draw the line as to who is entitled to communicate confidentially for the corporation to counsel. Until recently corporations and their counsel had very little guidance in answering this question. The Supreme Court of Florida recently announced a guide for corporations as to what corporate attorney communications will be confidential. The decision in Southern Bell Telephone and Telegraph Company v. Deason, et al., 632 So.2d 1377, (Fla. 1994), included a five part test. The Supreme Court's five criteria to determine whether a corporation's communications to and from counsel in furtherance of legal advice are entitled to the attorney-client privilege are as follows:

1. Whether the communication would not have been made but for the contemplation of legal services;

2. Whether the employee making the communication did so at the direction of his or her corporate superior;

3. Whether the superior made the request of the employee as part of the corporation's efforts to secure legal advice or services;

4. Whether the content of the communication relates to the legal services being rendered and the subject matter of the communication is within the scope of the employee's duties; and,

5. Whether the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

A crucial and significant impact of this test is that communications may be privileged regardless of whether made by lower level employees or upper level management. Note that under this test communications made by corporate agents, such as security guards and investigators, even if the communications were made at the corporation's attorney's direction, are not privileged.

Generally, privileged communications must remain confidential. To retain the attorney-client privilege a communication must not be made to a third person other than those necessary to render legal services. Necessary third parties have included, depending on the circumstances, translators, clerks, and experts assisting in the preparation of a case. A statement made to counsel by a lower level employee could lose its privilege if disseminated to other corporate employees. Recognizing that corporation structures sometimes require internal corporate communication of information before and after communications to counsel, the Supreme Court held that privileged communications can be disseminated to employees who "need to know" the information in order to perform their jobs. In the Southern Bell dispute, there was a question of whether certain written reports communicated to counsel were privileged communications. The Supreme Court ruled that only employee communications made directly to counsel and counsel's work notes regarding those statements were privileged. Thus, internal corporate investigations which involve data gathering, analysis, and corporate reports are not communications which fall within the attorney-client privilege.

If the attorney-client privilege does not protect a corporation's communications, there is a potential alternative that may keep a corporation's communications confidential, the discovery "work-product" exception. The work product exception seeks to protect reports made in anticipation of litigation or which contain attorney's thoughts, mental impressions, and legal theory. However, this procedure is not all inclusive. For example, it may not protect a corporation's investigative reports even if the reports were given to corporate counsel, if the reports were created for business purposes and not for obtaining legal advise, or if the opposing party can show "need of the material" or that the equivalent information cannot be obtained without "undue hardship".