Part I of this comment explains the attorney-client privilege and the waiver doctrine and demonstrates the important role the privilege plays in our legal system. It shows why, according to the DOJ charging policy, waiver of the privilege is often needed during corporate investigations. It also addresses how the charging policy erodes the privilege in the corporate context, thereby creating governance problems for corporations. Part II provides legal definitions and standards for coerced waivers to show that the choice corporations must make between waiving the privilege or increasing their risk of indictment does not meet any legal test for coercion. Part III concludes that although the waiver policy is problematic, it does not legally coerce corporations into compliance.
Emily S. Keller,
Corporate Cooperation in Criminal Investigations: Waiving Privileges Without Coercion, 39 Golden Gate U. L. Rev.