Does DOJ\u27s Privilege Waiver Policy Threaten the Rationales Underlying the Attorney-Client Privilege and Work Product Doctrine? A Preliminary No

According to white-collar defense practitioners, the demise of the corporate attorney-client privilege and work product doctrine is imminent. While a variety of assaults have been identified, by far the most oft-cited culprit is the U.S. Department of Justice (DOJ), whose prosecutors, it is charged, have routinely insisted that corporations waive these protections to secure cooperation credit and declination of criminal action against the corporate actor and/or consideration at sentencing. DOJ has, by and large, vigorously defended its policies in this regard. Congress now threatens to inject itself into the debate: legislation entitled the Attorney-Client Privilege Protection Act has been introduced that would bar federal prosecutors from asking organizations to disclose information protected by the attorney-client privilege or the work product doctrine or conditioning cooperation credit or civil or criminal charging decisions on whether an entity has waived these protections (the Act does not, however, affect organizations\u27 ability to volunteer to waive). The principal aim of this article is to explain why the proposed Act is responsive to a problem that does not exist, and non-responsive to the actual source of the defense bar\u27s unhappiness. It is the author\u27s belief that these privileges have assumed the job of the Fifth Amendment in the context of corporate investigations: that they are virtually the last means by which corporations can resist government efforts to impose potentially ruinous liability on corporate actors, whether or not such consequences are warranted. It is these circumstances, she suggests, that both account for the bar\u27s full-throated roar in objection to DOJ policy and for the reason why we should take it seriously