Issues in Corporate Compliance:
The Erosion of the Attorney-Client Privilege
by Tammi Franke, Partner,
Fitzgerald & Hewes
Fitzgerald & Hewes LLP
550 West Van Buren Street Suite 1450
Chicago, Illinois 60607 USA
This article discusses the current state of the Department of Justice (DOJ) policy on waivers of the Attorney-Client Privilege and the effect on corporate compliance programs.
A fundamental part of honest and open communications between attorneys and their clients is the attorney-client privilege. This legal principle, which protects confidential communications between lawyers and clients, is one of the foundations of our legal system.
Recently, the Department of Justice (DOJ) has been requesting waivers of the attorney-client privilege during investigations into corporate misconduct. The DOJ routinely views a waiver of the privilege as a sign of corporate cooperation in an investigation. In practice, companies under investigation have no choice but to waive these protections.
Corporate lawyers play a key role in helping companies and their officials understand and comply with complex laws and regulations. An open and confidential relationship between company lawyers and board members, business executives, and operating personnel is essential so that lawyers can represent the company effectively and ensure that compliance with laws and regulations is maintained. The DOJ policy requiring the waiver of attorney-client privilege discourages company personnel from consulting with their lawyers and undermines internal compliance programs and procedures.
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