The Future of the Attorney-Client Privilege in Corporate Criminal Investigations

Abstract

This manuscript discusses how the Department of Justice (DOJ) has viewed waiver of the attorney-client privilege as an important factor evidencing cooperation when determining whether to enter non-prosecution or deferred prosecution agreements with firms allegedly involved in criminal activities. It further discusses recent changes to the DOJ's guidelines, purporting to take waiver out of the equation in deciding whether to prosecute. Questions remain as to whether the corporate attorney-client privilege is a relic of the past or whether the new guidelines, issued in August, 2008, have indeed restored the privilege to firms under federal investigation.

Keywords: corporations, attorney-client privilege, Department of Justice Guidelines, Organizational Sentencing Guidelines, waiver of attorney-client privilege, deferred prosecution agreements

JEL Classification: K22, K42, G38