The Incredible Shrinking Privilege
November 01, 2003
Considering the role of prosecutorial discretion and the draconian consequences of a corporate conviction, corporations often have little choice but to plead guilty and cooperate with the government. Recently, the feds have raised the ante in this process by defining "cooperation" to include waiving the attorney-client privilege. Thus, corporations and counsel alike are forced into a Hobson's choice where at least partial waiver may be inevitable. Waiver law in the majority of circuits is stark - disclosure to the government is waiver as to third parties, at least as to the material disclosed. Therefore, the civil plaintiff that inevitably follows the government's investigative path finds fertile fodder in otherwise privileged, confidential, and often sensitive corporate documents that, but for the government's disclosure requirement, would be protected by privilege.
Ten Tips for Handling Sensitive Investigations
November 01, 2003
The Enron, Tyco and WorldCom scandals have greatly heightened the fiduciary duties of directors and officers and the scrutiny paid to them. The spotlight on corporations and their managers is likely to shine brightly for years to come. This article offers ten practical tips for handling sensitive investigations in an era where shareholders, prosecutors, regulators and courts are likely to scrutinize the response of organizations to inevitable episodes of suspected corporate misconduct.
In the Courts
November 01, 2003
Analysis of recent rulings you need to know.
State Proceedings and Confidentiality Agreements with the Federal Government
November 01, 2003
When management or the Board of Directors suspects possible misconduct within the company, they cannot respond with sound business judgment unless they have good information about what happened. In serious cases, they probably need outside counsel to investigate, report, and recommend remedies. The government has long encouraged companies to disclose the results of these internal investigations by offering the hope of leniency in charging or sentencing. On Sept. 22, 2003, the Attorney General added a "stick" to this "carrot" approach when he announced the Justice Department's new policy of charging the most serious criminal offenses that are readily provable, with a limited exception in cases where a defendant provided substantial assistance.
Court-Imposed Waiver of the Joint-Defense Privilege
November 01, 2003
Most defense attorneys enter into joint-defense agreements with the understanding that even if one of the signatories decides to withdraw from the agreement and cooperate with the government, the confidentiality provisions survive. Two recent decisions ' by the Eleventh Circuit and the Northern District of California ' have called provisions like these into question: <i>United States v. Almeida</i>, 341 F.3d 1318 (11th Cir. 2003); and <i>United States v. Stepney</i>, 246 F. Supp.2d 1069 (N.D. Cal. 2003). Any defense attorney who is considering entering into such an agreement should think twice &emdash; especially if some party may choose, down the road, to cooperate with the government.
HIPAA: Data Trade Prosecutions on the Horizon?
October 01, 2003
Mention HIPAA (the Health Insurance Portability and Accountability Act) to a typical CEO, and boredom sets in. Many corporate leaders remain unaware of the risks of HIPAA non-compliance, but the Act includes a criminal statute that creates vast potential exposure for health care providers and other players in the health care "data trade."
In the Courts
October 01, 2003
Reviews of key cases of interest to your practice.
After the Guilty Plea
October 01, 2003
The onslaught of guilty pleas in post-Enron financial fraud cases has created new challenges for defense attorneys in the parallel civil litigation that inevitably accompanies criminal charges. Attorneys for the civil plaintiffs are quick to strike as soon as the guilty pleas are disclosed, demanding that the pleading defendant provide the documents and testimony previously denied to them by the invocation of the Fifth Amendment, and seeking to collect a prompt judgment.
