The federal government is no friend to the attorney-client privilege. That’s just simply a fact. Perhaps no other factor lately has applied greater pressure on the privilege than the government’s practice of insisting on waiver of the privilege as an indication of cooperation. Certainly other agencies have gotten into the act, but the Justice Department and the Securities and Exchange Commission lead the charge in requiring corporate investigation targets to sacrifice confidentiality for the benefits of cooperation.
The government’s practice raises lots of academic questions concerning the purpose of the privilege and the long-term impact of such waivers on the role — and effectiveness — of corporate counsel. Unfortunately lost in the debate is any real examination of the reasons why government prosecutors apparently have so little regard for the oldest common-law privilege and the defining characteristic of the attorney-client relationship.
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