On October 6, 2008, the Securities & Exchange Commission (SEC) published a new enforcement manual that provides guidance to its attorneys on the commencement, conduct, and conclusion of investigations. One notable item in the new manual is a prohibition against SEC staff attorneys requesting that those under investigation waive attorney-client privilege and work product protection. This SEC’s action came about six weeks after the Department of Justice (DOJ) revised its own manual to prohibit federal prosecutors from using privilege waivers as a factor in deciding whether a business organization “cooperated” with a government investigation.
The issue of privilege waiver has received a great deal of attention over the past several years. Congress recently joined the defense bar and the business community in calling for limitations on the ability of the SEC and the DOJ to request that companies under investigation waive privilege. Wrongly or rightly, the perception has been that business organizations were being coerced to share confidential information with the government or risk prosecution for failing to cooperate.
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