Hofstra Law Review, Vol. 34, No. 3 (Spring 2006), pp. 897-963. Originally uploaded at SSRN

Abstract

The Department of Justice (“DOJ”) has adopted guidelines that seem to make waiver of the attorney-client privilege and work product protection a prerequisite for being deemed “cooperative,” a significant designation that carries with it the prospect for more favorable penal treatment. In addition, the United States Sentencing Commission underscored the potential importance of such waivers by approving an amendment to the Federal Sentencing Guidelines in 2004 that, under certain circumstances, makes privilege waiver a factor in assessing a corporation's “culpability score,” which is used in determining the appropriate sentencing range.

This perceived ever-present concern has caused many corporate executives and their counsel to question the continued efficacy of the attorney-client privilege and work product doctrine. In particular, they contend that the escalating pressure to waive these protections is eroding the desired atmosphere of mutual candor and trust that has traditionally been the hallmark of the attorney-client relationship, which, in turn, is adversely affecting counsel's desire and ability to conduct the thorough factual investigations lauded by the Supreme Court in Upjohn Co. v. United States.

Is compelled-voluntary waiver eviscerating the corporate attorney-client privilege and its concomitant benefits; or is the corporate attorney-client privilege already a fundamentally flawed doctrine that fails to promote the elemental touchstones of its forerunner, the individual attorney-client privilege? As this Article reveals, the answer to these questions is both “yes” and “no.” There is some truth to each position, but at the end of the day, accepting either does little to resolve the controversy surrounding the DOJ and other privilege waiver policies. Something more needs to be done to address adequately the problems created by the oxymoronic concept of compelled-voluntary waiver, as well as the inherent deficiencies of the corporate attorney-client privilege.

After discussing some foundational background principles regarding the individual and corporate attorney-client privileges in Parts II and III, Part IV provides a detailed examination of the compelled-voluntary waiver issue and its alleged effects on the corporate attorney-client relationship. The Article continues in Part V with a discussion and assessment of the selective waiver doctrine, which appears to be the most popular remedial proposal at present. Part VI then presents support for refocusing the waiver debate on reconsideration of the privilege itself, and concludes with a proposal for the establishment of a uniform corporate attorney-client privilege, the scope of which should be modeled after the once popular “control group” test, albeit in a slightly revised form.