Privilege in Peril: Corporate Cooperation in the New Era of Government Investigations

March 4, 2006

George J. Terwilliger III, Darryl S. Lew

The protection against disclosure afforded attorney-client communications and attorney work product, a pillar of the American legal system, is in peril. Three principal developments have coalesced to cause this state of affairs. First, the era of vigorous government regulation and prosecution of corporations continues unabated, making names like Enron, topics such as the internal investigation, and obligations such as Sarbanes-Oxley compliance common subjects of boardroom discussion. Second, government policies and practices adopted by the Department of Justice, the Securities and Exchange Commission, and the United States Sentencing Commission strongly encourage and, arguably, practically require a corporation interested in cooperating with a government inquiry to waive the protections of the attorney-client privilege and work-product doctrine that may attach to internal corporate investigations and other corporate legal activity. And third, the majority of courts has not recognized the concept of a limited waiver of privilege, so that a corporation wishing to share some privileged information with the government to facilitate the goals of law enforcement and corporate oversight cannot do so without risking being held to have waived, as to all third parties, applicable privilege or protections regarding the entire subject matter of the privileged material and communications disclosed. The latter concern is most acute in the context of threatened parallel civil litigation undertaken by opportunistic plaintiff ’s counsel....

Privilege in Peril: Corporate Cooperation in the New Era of Government Investigations