Attorney-client Privilege Research Articles

The Application of the Attorney-Client Privilege to Interactions Among Clients, Attorneys, and Experts in the Age of Consultants: The Need for a More Precise, Fundamental Analysis

The Application of the Attorney-Client Privilege to Interactions Among Clients, Attorneys, and Experts in the Age of Consultants: The Need for a More Precise, Fundamental Analysis

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

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.

Corporate Attorney-Client Privilege in the Digital Age: War on Two Fronts?

Corporate Attorney-Client Privilege in the Digital Age: War on Two Fronts?

Federal Rules of Evidence update of Rule 502

It is prudent for the forensic examiner to review the Federal Rules of Evidence (FRE) periodically for new rules, new editions, and addendums. The rules by which a court determines what evidence is admissible at trial are called rules of evidence. In the United States, federal courts follow the FRE, whereas the state courts follow their own rules (generally imposed by the state legislature). There are 11 articles with multiple rules contained in the FRE. The FRE are published as Title 28 of the United States Code and, therefore, can be found in any paper or electronic, annotated, or unannotated editions of the US Code (“United States Code”). A free, unannotated electronic version (2009) is posted on the Council on Forensic Sciences Web site at http://www. forensic-sciences.org. This new FRE Rule 502 was recently signed into law and is entitled “Attorney-Client Privilege and Work Product: Limitations on Waiver” (http://www.uscourts. gov/rules/Congressional_Record_re_S2450.pdf). Rule 502 no longer allows partial or complete waiver of the attorney-client privilege and work product by intentional or inadvertent disclosures. Rule 502, AttorneyClient Privilege and Work Product: Limitations on Waiver can be found at http://federalevidence.com/pdf/ 2008/10-Oct/PubLNo110-322.pdf.

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

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.

The Death of Selective Waiver: How New Federal Rule of Evidence 502 Ends the Nationalization Debate

New Federal Rule of Evidence 502 (“FRE 502”) will end the threedecade push to nationalize a corporate litigation protection known as the “selective waiver doctrine.” First adopted by the Eighth Circuit in 1978, the selective waiver doctrine holds that, when a corporation discloses privileged materials to a government agency during an investigation, the corporation retains its privileges against third-party litigants—i.e., the corporation may selectively waive its attorney-client privilege (and in other circuits its attorney work product protection). This flies in the face of traditional waiver rules, under which a waiver of privilege to one’s adversary generally is a waiver to all adversaries on that subject matter. Based on years of frustration with discovery costs, fear of corporate fraud, and heavy burdens placed on administrative agencies, many legal scholars praised selective waiver as a cure for those ills. Recently, when the Advisory Committee on Evidence Rules met to discuss additions to the FRE, many called for the inclusion of a selective waiver provision. After much debate, the Advisory Committee determined that the selective waiver proposal for FRE 502 was too controversial. In its enacted form, FRE 502 does not contain a selective waiver provision.

Executive-Branch Regulation of Criminal Defense Counsel and the Private Contract Limit on Prosecutor Bargaining

Criminal defendants' right to counsel is regulated by courts, legislatures and, more recently and controversially, by the executive branch. Prosecutors recently have taken a more active role in affecting the power and effectiveness of defense counsel, especially privately retained counsel in white-collar crime cases. Under the Thompson Memo, prosecutors bargain to win waivers of attorney-client privilege and to convince corporate defendants not to pay the legal fees of corporate officers who face separate indictments. These tactics join longer-standing tools to weaken defense representation through forfeiture, Justice Department eavesdropping on attorney-client conversations of defendants in federal custody, and prosecutors' power to veto defendants' choices to share attorneys with other suspects. The organizing concern for regulation of counsel is not simply fairness, but also accuracy and a less noted goal - effectiveness of criminal law enforcement. Defense counsel is best understood not solely in light of defendant's interests but also of systemic ones. That gives the executive branch a stronger claim to competence in regulating counsel. But regulation works best when the regulator is institutionally well suited to the task, and one feature that makes an actor well suited is supervision or some other check by another actor. By those criteria, much executive-branch regulation of defense counsel is acceptable, because prosecutors either need the consent of Congress or the judiciary, or - in the case of privilege waivers - must face well-funded counsel in negotiation. But bargaining to end attorneys' fee payments to some defendants is different. That policy gives prosecutors power unchecked by legislatures and courts or even the capable opposition of a well-funded opponent. The Supreme Court has left little doctrinal basis for restricting prosecutors' bargaining incentives for defendant cooperation. Yet this essay explains how firms themselves, through private contract, can take much of the sting out of prosecutors' abilities to demand nonpayment of attorneys' fees. Further, as they do so, courts are likely to be receptive to a narrow constitutional doctrine that leaves current plea bargaining law in place but still bars prosecutorial incentives for firms to breach duties to pay fees. Courts and defendants can work within Supreme Court doctrine to limit prosecutors by grounding those limits in the protection of contract obligations as much as the right to counsel.

Tax accrual workpapers and the discovery process: Textron provides insight

The paper examines certain recent developments concerning the extent to which tax accrual workpapers are subject to discovery by third parties. One context in which this issue has arisen has involved IRS efforts to attain such workpapers from accountants in the course of conducting a tax audit. Arguments raised in an effort to protect such workpapers from discovery have included: the attorney-client privilege, tax practitioner privilege and work product doctrine. Assertion of the work product doctrine has met with some success in recent cases, e.g., Roxworthy and Textron. Included among the topics discussed in this paper are the IRS definition of tax accrual workpapers, standards and rules concerning the application and waiver of the work product doctrine, and the recent United States District Court decision in the Textron case.

Attorney and Client: Obligations and Privileges, Edited by P L Jayanthi Reddy, Amicus Books, the ICFAI University Press 2008

This is not a book. It is a collection of articles from various sources. Nor should you be deceived by the title. It does not deal with the subject of attorney and client in any general way; rather its focus is far narrower. Most of the included articles concern attorney and corporate client privilege as it is applied to a corporation under regulatory investigation. Therefore, if you are looking for a book on attorney and client privilege, this is not the one.

Rico v. Mitsubishi: The Inadvertent Disclosure of California's Flawed Work Product Doctrine

Copyright ? 2009 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t J D. Candidate, University of California, Berkeley, School of Law, 2010; B.A., Northwestern University, 2005. Special thanks to Professor Hanlon for his invaluable guidance. 1. Trina Jones, Inadvertent Disclosure of Privileged Information and the Law of Mistake: Using Substantive Legal Principles to Guide Ethical Decision Making, 48 Emory L.J. 1255, 1263 (1999) (Inadvertent disclosure involves two values that are central to the law of lawyering: confidentiality and zealous representation of client interests. In the inadvertent disclosure context, these values conflict and produce a case of true ethical dilemma, a situation in which neither choice made by the receiving lawyer can easily be justified). Courts throughout the nation have also weighed these conflicting values. See, e.g., Amgen, Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. 287, 291 (D. Mass. 2000) (adopting a rule that strikes a balance between [the] two rigid solutions of always waiving a privilege, thus favoring the side of zealous representation, and never waiving the privilege, thus favoring protection of privilege); see also SEC v. Cassano, 189 F.R.D. 83 (S.D.N.Y. 1999). 2. Model Rules of Prof'l Conduct R. 1.3 cmt. (A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf). 3. See, e.g., Cal. Civ. Proc. Code ? 2018.020 (West 2007) (California attorney work product protection); Fed. R. Civ. P. 26(b)(3)(A) (federal attorney work product protection); see also Cal. Evid. Code ? 954 (West 1995) (California attorney-client privilege). Zealous client representation and evidentiary shields provided to protected or privileged documents are, by no means, the only interests at stake in cases of inadvertent disclosure. See, e.g., State Comp. Ins. Fund v. WPS, Inc., 82 Cal. Rptr. 2d 799, 808 (Cal. Ct. App. 1999) (An attorney has an obligation not only to protect his client's interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.).

Evidentiary Privileges in International Intellectual Property Practice

Because the international intellectual property is based on a purely territorial model, a party who desires to obtain intellectual property rights in multiple jurisdictions must seek protection in each nation. This system creates unique and largely unforeseen problems involving the attorney client privilege. Although the party will be conveying much of the same information to legal counsel in all nations in which she seeks protection, the attorney-client privilege rules in various nations differ significantly. This paper, which will be presented at the INTA conference in May, 2009, explores the problem and critiques one proposed solution.

Valuing the Waiver: The Real Beauty of Ex Ante Over Ex Post

Irony abounds in connection with demands and proposals made, in the wake of the Enron, Worldcom, and other corporate scandals, that firms be required or encouraged to waive attorney-client privilege. Justice Department officials speak to the importance of getting at the truth as trumping firms' interest in confidential internal communications as a prerequisite to compliance with law. They do so notwithstanding their own contrary arguments made on behalf of the secretive Bush administration that employs them. Corporate officers, for their part, speak as though Ralph Nader were the Attorney General when they denounce waiver proposals. They do so notwithstanding the business-friendly nature of the Bush administration. In this essay I suggest that, since what is actually at stake in these waiver debates is value for shareholders, the securities markets, if informationally efficient, are the most apt evaluators of particular firms' waivers of privilege. Provided that the semi-strong form of the efficient capital markets hypothesis is indeed well supported as the literature suggests, share-price response to voluntary ex ante waiver will be the optimal indicator of whether, and how much, waivers of privilege inure to the good or the ill of particular firms.

Constructive Strict-Approach to Attorney-Client Privilege in Bankruptcy: Lack of Clarity in Rule 502 Makes Its Application to Bankruptcy Unclear

Electronic discovery (e-discovery) creates issues that are fundamentally different from the issues associated with paper discovery.' In response to these differences, the United States Congress promulgated the 2006 Amendments to the Federal Rules of Civil Procedure. These amendments address a number of problems associated with e-discovery; however, they do not address many of the specific problems associated with the attorney-client privilege that arise from large amounts of electronically stored information (ESI).2 The United States House of Representatives Committee on Rules of Practice and Procedure proposed Rule 502 of Evidence (Rule 502) to address these issues. Rule 502 addresses the effects of inadvertent disclosures in discovery, and whether those inadvertent disclosures operate as waivers of the attorney-client privilege. Unfortunately, the proposed rule does not address many of the intricate situations that are present in every bankruptcy case. This Note first examines broadly the scope of ESI and e-discovery and their effect on the legal field. Next, it discusses generally the attorney- client privilege and how waiver occurs. Then this Note analyzes Rule 502 and how it addresses several problems attorneys currently face with waiver of the attorney-client privilege in e-discovery. Then, it shows how Rule 502 does not address two specific problems in the bankruptcy context. Finally, it will offer attorneys a few suggestions to insure that the client's attorney-client privilege is preserved.

Comparative Corporate Criminal Liability: Exploring the Uniquely American Doctrine through Comparative Criminal Procedure

In the United States, corporations—as entities—can be criminally tried and convicted for crimes committed by individual directors, managers, and even low-level employees. From a comparative perspective, such corporate liability marks the United States as relatively unique. Few other Western countries impose entity liability, and those that do impose such liability comparatively infrequently and under the threat of far less serious punishment. The question of why the United States—and the United States virtually alone—imposes corporate criminal liability has been the subject of limited scholarly attention. This Note seeks to fill that void through the prism of comparative law. Using Germany—a country that imposes no corporate criminal liability—as a foil, this Note argues that the American doctrine can best be explained not through criminal theory but rather through criminal procedure. American criminal procedure imposes unique difficulties on American investigators and prosecutors seeking to root out individual white-collar criminals. But it also imparts powers to those prosecutors that are unknown to their German counterparts. Among them is the power to threaten criminal indictment, one that allows prosecutors to force American corporations to cooperate, to waive the attorney-client privilege, and to cut ties to individual employees under investigation, thereby facilitating the prosecution of those individual defendants. Using differences in criminal procedure rather than criminal theory to explain the uniquely American doctrine, this Note concludes by suggesting how the criminal procedure approach can best be used to understand— and potentially to reform—an American system that critics increasingly decry as broken. author. Yale Law School, J.D. 2008; Yale College, B.A. 2003. The author wishes to thank Professor James Whitman for inspiring this project and providing extensive feedback on prior drafts; Professors Kate Stith and Steven Duke for their invaluable guidance on this and other projects; and Greg Diskant, Paul Hughes, Richard Re, and Nicolas Thompson for their very helpful comments on the topic and prior drafts. DISKANT OP 10/14/2008 11:37:14 AM comparative corporate criminal liability

The Dynamic Attorney-Client Privilege

The proliferation of legal rules and the growth of government regulation have left very few aspects of human activity and relationships untouched by law. For these reasons, the categories of matters that may come within the scope of legal representation today are very broad indeed. Even persons not contemplating litigation, considering a transaction, or seeking preparation of a legal document may seek the advice of a lawyer about the legal implications of diverse forms of human conduct and associations. To provide effective representation, the lawyer in contemporary American society may need to bring to bear expertise, knowledge, skills, and services beyond what traditionally was regarded as legal in nature. Under modern circumstances, when a matter having a legal dimension is brought to a lawyer, the animating purpose of the attorney-client privilege is best realized by allowing the lawyer and client to fully explore both legal and non-legal aspects in an integrated manner. And if we wish to encourage lawyers and clients to engage in moral deliberation, the confidential shield of the privilege must cover introduction of such non-legal principles into the discussion. Accordingly, the contours of the attorney-client privilege should adjust proportionally with the dynamic changes in the practice of law and lawyer counseling.

Disparate Positions on Confidentiality and Privilege Across National Boundaries Create Danger and Uncertainty for In-House Counsel and Their Clients

The bar in the United States is a unified one, with attorney-client privilege, work product immunity and the duty of confidentiality attaching to its members as a general premise. In most other countries, the bar is bifurcated, and distinctions are made between lawyers undertaking different areas of work. Among the distinctions made between the different legal professions is the existence and applicability of the doctrine of privilege and confidentiality. In many countries, rules relating to confidentiality and privilege are confined to lawyers who are members of the bar. Excluded from bar membership in many of these countries are in-house counsel, the concept being that the independence which is called for in legal practice is evidenced by self-employment. It is felt that financial reliance on a single employer carries with it the surrender of ethical autonomy.Increasingly, as clients conduct business on a global basis and cross-border legal practice increases, disparate standards on confidentiality and privilege are giving rise to recurring problems. Most vulnerable seem to be in-house counsel advising companies that operate in multiple jurisdictions. Some countries grant legal professional privilege to in-house counsel, while others do not. Some countries call for criminal sanctions to be imposed if a confidentiality obligation is breached, while others only protect documents in the possession of the lawyer. When the reach of a lawyer's practice transcends borders, the lawyer must ascertain to whom, and to what, confidentiality applies or privilege attaches. Something may be protected in one jurisdiction, but not in another. It is incumbent upon lawyers to acquaint themselves, and their staffs, with rules relating to confidentiality and privilege in all relevant jurisdictions. This is particularly true for in-house counsel, whom are shown to be significantly impacted by the reach of these doctrines.

Corporate Attorney-Client Privileges and Work-Product Protections Should Absolutely Be Preserved

The attorney-client privilege is one of the oldest and most basic tenets of American common law. Over the years, however, this privilege has eroded away as it applies to corporations. Beginning in 1999 with the promulgation of a memorandum issued by then-Deputy Attorney General Eric H. Holder (the Holder Memo), the Department of Justice has consistently pursued a policy of “compelled waiver” with regard to corporations. This Department policy has been repeatedly reaffirmed over the years in subsequent memoranda from Deputy Attorney General Larry D. Thompson (the Thompson Memo), Acting Deputy Attorney General Robert D. McCallum, Jr. (the McCallum Memo),6 and Deputy Attorney General Paul J. McNulty (the McNulty Memo).

Sexuality and Social Change: Sexual Relations in a Capitalist System:The Politics of Passion: Women's Sexual Culture in the Afro-Surinamese Diaspora;Wayward Women: Sexuality and Agency in a New Guinea Society;The Purchase of Intimacy

In 1975, in the classic work The Traffic in Women: Notes on the Political Economy of Sex, Gayle Rubin established the importance of the exchange of women between house holds as the foundation for the sex-gender system. Since Rubin's germinal article, anthropologists have increasingly examined both the influence of commodities on women's sexuality and the treatment of women's sexuality as a commodity. The three books reviewed in this essay address both approaches to the intersection between sex and the economy; collectively, authors Viviana Zelizer, Holly Ward low, and Gloria Wekker suggest that sexuality has been examined too narrowly as either inimical to the economic sphere or deeply subsumed within it. As an alternative, the authors suggest that sexuality is embedded within the economic sphere, influenced by economic changes yet not determined by them. Economic sociologist Viviana Zelizer's book, The Pur chase of Intimacy, examines the behavior of inti macy and finances in the U.S. legal and social systems. Us ing a sophisticated collection of legal cases and secondary data, Zelizer uses an expansive definition of to ex plore a range of intimate economic transactions from cou pling to household commerce. This definition extends be yond sexual relations to incorporate usually excluded inti mate relations such as the attorney-client privilege, which treats communication of personal information as a type of intimacy. Zelizer's research challenges the two dominant theo ries on and economics?what she refers to as the hostile spheres and nothing theories?in favor of a theory of economics and intimacy. The hostile spheres argument suggests that sustaining intimacy and corrupting markets are inherently contradictory (p. 40). The nothing argument is a collection of theories that reduce to factors such as the market or cul ture without examining the intersection between and economics. Zelizer proposes instead the relational or connected lives argument, namely arguing that people who blend and economic activity are actively en gaged in constructing and negotiating 'Connected Lives' (p. 22). This work includes the negotiations indi viduals engage in when they blend and economics in several spheres: coupling relations, caring work, and household commerce. For example, the work in volved in allocating money for children's allowances and the exchange of money or goods for sex is all within the purview of this book. Zelizer examines data not only on how individuals ne gotiate this work but also on how this work is interpreted and policed by the U.S. legal system. Zelizer admits that she provides neither a definitive account of the U.S. law of nor an account that would be satisfactory for a legal specialist. Indeed, in some portions of the book, it seems Zelizer wanders from one interesting example to another without pausing for detailed analysis. However, from an economic sociology perspective, she an alyzes how judges and lawyers attempt to first understand the type of intimate relationship between two parties and then to match these relations with an appropriate legal def inition, such as marriage or cohabitation, that includes an

The Accountable Attorney: A Proposal to Revamp the Aba’s 1976 Statement of Policy Regarding Lawyers’ Responses to Auditors’ Requests for Information

The American Bar Association's (ABA) long-standing compromise' with the American Institute of Certified Public Accountants (AICPA) regarding the role of lawyers in audits of public companies needs an overhaul. The current process is dysfunctional: accountants attempt to opine on a company's disclosures about litigation and to assess loss exposure without any foundation in the legal issues involved. During this process, those accountants turn to their clients' attorneys for help. But lawyers, concerned about preserving confidentiality and privilege, routinely respond to the accountants' requests with verbiage honed to say nothing at all. This Comment argues that the time has come to divorce CPAs from the task of evaluating legal risks in the course of their audits. Instead, an Independent Legal Counsel should report on the company's disclosure of legal matters. The benefits of this approach are: (1) to eliminate ineffective and unproductive handoffs under the current audit processes; (2) to avoid troubling attorney-client privilege risks during the background discussions of the legal contingencies; and (3) to improve public confidence in the legal disclosures made in financial statements.

Tobacco industry lawyers as “disease vectors”

Objective: Despite their obligation to do so, tobacco companies often failed to conduct product safety research or, when research was conducted, failed to disseminate the results to the medical community...