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When a Corporation Might Not Be a Criminal Target's Friend

As Mitt Romney famously noted, "Corporations are people, my friend." But not when it comes to Fifth Amendment privileges, as a US Bankruptcy Court in New York recently made clear. Clients of the now defunct law firm Kossoff PLLC filed involuntary bankruptcy petitions against the firm and the firm's appointed representative, its founder and former managing member, resisted producing records to the trustee claiming the production of the documents could incriminate the representative in a pending criminal investigation. The Court rejected the argument, finding that while the individual representative may have a privilege under the Fifth Amendment, the firm is a separate corporate entity and cannot assert the individual member's rights.  With longstanding precedent establishing that corporations enjoy no rights under the Fifth Amendment, the firm's representative could not effectively transfer his personal rights to the firm, even if it operated as a sole proprietorship and even if the act of producing the documents would be incriminating.

So, friend or foe, the legal separation between a firm's manager and the firm itself may limit the applicability of the right to avoid compelled self-incrimination.