Academic journal article Texas Law Review

A Legislative Solution: Solving the Contemporary Challenge of Forced Waiver of Privilege*

Academic journal article Texas Law Review

A Legislative Solution: Solving the Contemporary Challenge of Forced Waiver of Privilege*

Article excerpt

"The attorney-client privilege . . . is a fundamental element of the American system of justice, and I fear that we have been all too slow in recognizing how seriously the privilege has been undermined in the past several years by Government action."

-Former Attorney General Dick Thornburgh1

I. Introduction

The core value of clienthood is confidentiality. A confidential relationship between the lawyer and the client allows the lawyer to receive both the information he needs to represent the client zealously as well as the freedom to work without interference. Confidentiality is achieved chiefly through the attorney-client privilege but is also supplemented through the "work product" privilege. The attorney-client privilege is one of the oldest recognized privileges, and it is firmly established in the American justice system. The work product privilege is a more recent creation, but it too has been firmly established since its inception. Both privileges work together to foster communication between the client and the lawyer in order for the lawyer to be able to perform her job in the best manner possible. This serves both the interests of the client and the justice system in general.

Recently, both of these privileges have come under assault from the United States government. The infamous and highly publicized collapses of Enron, WorldCom, and other companies brought corporate criminal liability and corruption to the forefront of concerns for the government. As a result, the Department of Justice (DOJ) and other governmental agencies began to pressure corporations and other entities to waive their attorney-client and work product privileges. This has led to what is often referred to as a culture of waiver surrounding negotiations between the government and corporations. This culture of waiver involves governmental agencies, particularly the DOJ, implicitly requiring that corporations waive their privileges and cooperate in governmental investigations, or making it difficult for corporations not to waive their privileges by providing incentives to do so.2 This forced waiver infringes on corporations' rights to keep information confidential under their attorney-client and work product privileges and exposes corporations to potential civil suits by third parties who can get access to unprivileged information. The DOJ has issued a series of memos over the last few years updating its policies on requests for waiver of privilege, culminating in the McNulty Memo issued in December of 2006.3 However, none of these pronouncements has rectified the problem of forced waiver.

One solution to this problematic situation of forced waiver that commentators frequently propose is selective waiver. Selective waiver is a doctrine that allows an entity to provide privileged information to governmental agencies while it still reserves the privilege to all third parties. Under this doctrine, federal prosecutors can still request privileged information from corporations, and the corporations can surrender the privileged information to the government without fear of third parties using the information in civil suits. Selective waiver first arose in 1978 in Diversified Industries, Inc. v. Meredith.4 Early commentators roundly criticized the doctrine of selective waiver.5 Then, as most federal appellate courts chose not to adopt selective waiver, the controversy over the doctrine faded away. Now, with the government's increased pressure on entities, selective waiver has become a significant issue again. Many contemporary commentators believe that selective waiver is an excellent compromise solution to the problem of policing entities.6 They argue that the federal government should be allowed to request privileged information from companies and believe that selective waiver is a way to provide some protection for this information.7

Selective waiver, however, is not the appropriate solution to the problem of forced waiver. …

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