Corporate America Fights Back: The Battle Over Waiver of the Attorney-Client Privilege

54 Pages Posted: 5 Mar 2010 Last revised: 11 May 2010

Michael Seigel

University of Florida - Levin College of Law

Date Written: March 3, 2010

Abstract

Abstract: This Article addresses a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, on the one side, and the U.S. Department of Justice on the other. The fight is over federal prosecutors' escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department of Justice views privilege waiver as a legitimate and critical tool in its post-Enron battle against white collar crime. The business lobby views it as encroaching on corporations' fundamental right to protect confidential attorney-client communications. This Article seeks to transcend the feverish rhetoric dominating the debate by undertaking a careful cost-benefit approach to the matter. It con-cludes that the Department of Justice's recent policy statement on privilege waiver, contained in Deputy Attorney General Paul McNulty's 2006 Memorandum, merits a chance to work - with a number of important caveats that are fleshed out in the text.

Keywords: attorney-client privilege, waiver, corporations, McNulty, DOJ

Suggested Citation

Seigel, Michael, Corporate America Fights Back: The Battle Over Waiver of the Attorney-Client Privilege (March 3, 2010). University of Florida Levin College of Law Research Paper No. 2010-10. Available at SSRN: https://ssrn.com/abstract=1564270 or http://dx.doi.org/10.2139/ssrn.1564270

Michael Seigel (Contact Author)

University of Florida - Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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