It’s a privilege to be a tenured professor. No, not that kind of privilege.
The good professor has been watching the actions of business to control the erosion of corporate attorney-client privilege and his view can be summed up in three words: he no likey. I took a look at these efforts last month.
Professor Siegel makes a few good points on the nature of the corporate attorney-client privilege (it’s not absolute and waiver can be a necessary prosecutorial tool). Heck, he even works the Upjohn case into the mass media!
However, he then goes Hemingway:
But big business smells blood. Its reaction to the McNulty memo has been negative, and its goal continues to be the outright prohibition of waiver requests. Through reintroduction of the Specter bill, it is pressing its legislative “fix” in the new Congress, and the newly empowered Democrats — eager for lobbyists’ money — are likely to be as responsive as their Republican predecessors. The result of a waiver prohibition, of course, would be a significant slowdown of white-collar criminal prosecutions — exactly what the business lobby wants. And the losers, once again, would be the victims of white-collar crime: the American people.
What Professor Siegel fails to note is that some prosecutors have essentially abused waiver and used it to fashion paper-thin criminal cases out of what is really civil wrongdoing (if any). Prosecutors have demanded almost real-time production of all attorney-client communications, sitting back and seeing what they can reel in. For many companies, “cooperation” is tantamount to capitulation.
The professor should also recognize the tremendous pressure public companies face when a cloud of alleged criminality hangs over the boardroom. The need to cut a deal–any deal–is there, and prosecutors know it. And we won’t event comment on the government’s pressure for corporations to withhold funding the defense of targeted executives.
If all prosecutors were measured in their requests for waivers, these organized business efforts probably wouldn’t be necessary. But business, for all of its faults, operates in the real world.