Updates on the corporate attorney‐client privilege

Abstract

PurposeThis paper seeks to describe and assess recent legal developments that affect the corporate attorney‐client privilege.Design/methodology/approachDiscusses and analyzes the corporate attorney‐client privilege and work product doctrine and the role of such protections in US society; discusses how recent developments including policies of the US Department of Justice and the evolving role of corporate auditors have adversely affected these protections, and shows how some of these developments can be ameliorated so as to preserve the important principles underlying the corporate attorney‐client privilege.FindingsThe upsurge of investigations into alleged corporate criminality has reignited the debate over the value of the privilege and the ability to have confidential communications between corporations and clients. Although judicial decisions do not favor adoption of a “selective waiver” doctrine, concerns have also been raised that legislative adoption of a selective waiver in this current culture‐of‐waiver environment may practically prevent companies from ever being able to assert a privilege again in governmental investigations.Originality/valueA useful update on developments affecting the attorney‐client privilege and work product doctrine from a lawyer who specializes in securities litigation and governmental enforcement and is a member of the New York State Bar Association Task Force on the Attorney Client Privilege as well as Liaison from the Corporate Counsel Consortium to the American Bar Association Task Force on the Attorney Client Privilege.