The Last Straw: The Department of Justice\u27s Privilege Waiver Policy and the Death of Adversarial Justice in Criminal Investigations of Corporations

The white-collar criminal defense bar has never been reticent to complain about U.S. Department of Justice (DOJ) policies that threaten its clients or the viability of its practice. But nothing--at least in the author\u27s twenty-plus years of involvement in white-collar issues--has consumed the bar as much as the threats posed to the corporate attorney-client privilege and work-product doctrine. While commentators have identified a variety of assaults on these protections, the bar is most vocally outraged by the DOJ policy, pursuant to which, it charges, federal prosecutors regularly insist that corporations waive these protections to secure cooperation credit, declination of criminal action against the corporate actor, and consideration at sentencing. For some time now, the defense objections to this particular policy have been unusually sustained, widespread, and passionate. Until recently, few outside the DOJ have questioned the bona fides of these objections. Public corporations essentially have no choice but to investigate when confronted with possible corporate malfeasance. Internal investigations certainly have their costs, but, given the imperatives created by statutory, regulatory, prosecutorial, sentencing, civil liability, and corporate law pressures, the internal investigation has become the standard of care whenever credible allegations of significant misconduct are raised in organizational settings. Corporations, then, have compelling incentives to investigate allegations of potential criminal wrongdoing, whether or not the attorney-client privilege will ultimately shield the facts revealed by their investigative efforts