Attorney-Client Privilege in Congressional Investigations

For a litigator accustomed to practicing in court, representing a client in a Congressional investigation presents unique challenges, as the rules, procedures, processes, and customs differ vastly. One area of stark difference is the status and treatment of attorney-client privilege. Over the years, much has been said about whether the privilege does or does not apply in a Congressional investigation. The practical reality lies somewhere in between. While Congressional committees generally adopt the view that the privilege is not applicable as a matter of right, most view it as within their discretion to sustain an assertion under certain circumstances. Counsel must nimbly navigate the pitfalls to ensure that the privilege is properly asserted, that it is not waived or compromised in any fashion, and that the client is not prejudiced in actual or potential parallel proceedings.