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The Government's Evolving Position on Privilege
As recently as 6 months ago, many commentators were proclaiming the demise of the attorney-client privilege and work product protection in the context of corporate internal investigations. It now appears that these predictions were premature. Law enforcement officials are becoming more sensitive to the legitimate reasons for protecting a corporation's ability to assert these privileges. Although, from the viewpoint of business, there's still a long way to go, companies have reason to be hopeful.
Background
A corporation's legal right to invoke the attorney-client privilege and work product protection in the context of corporate internal investigations has been well settled for decades. In the last 6 years, however, corporate privileges have come under attack by both the SEC and the Department of Justice (DOJ). In June 1999, Eric Holder, the DOJ's then-Deputy Attorney General, issued a memorandum that contained guidelines for the federal prosecution of corporations. Striking the first blow on a corporation's ability to assert the privileges, the Holder Memo identified a “corporation's willingness … to waive the attorney-client and work product privileges” as one factor to be considered in “gauging the extent of the corporation's cooperation.” While the memo did not make waiver a prerequisite for being treated as a cooperator, it clearly provided prosecutors with leverage to seek such waivers.
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