The federal sentencing guidelines were recently amended to remove a suggestion that corporations be required to waive the attorney-client privilege and attorney work product doctrine in order to receive a reduced sentence. Though welcomed by the business community, this revision does not affect previously issued guidance by the Department of Justice requiring prosecutors to consider a corporation’s voluntary waiver of the attorney-client privilege and work product doctrine in determining whether to bring charges against the corporation in the first place.
The attorney-client privilege is designed to encourage frank communication between clients and their counsel. The work product doctrine is designed to protect the integrity of the adversary process by generally making counsel’s trial preparation materials, strategy and thought process off limits (i.e., not discoverable) to the other side in a litigation or other adversarial proceeding. Notwithstanding the salutary purposes of these time-honored protections, prosecutors view them with suspicion, believing that corporations routinely abuse them to obstruct justice and protect wrongdoers.
Since the “Thompson Memorandum” in 2003, the DoJ has expressly required prosecutors to consider “the corporation’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of corporate attorney-client and work product protection” in determining whether to bring criminal charges against a corporation. Then, in November 2005, the Sentencing Commission revised the federal sentencing guidelines to include similar language suggesting that corporations seeking to obtain a “culpability reduction” by reason of cooperation with prosecutors must “voluntarily” waive the attorney-client privilege and work product doctrine.
Organizations as varied as the American Civil Liberties Union, the United States Chamber of Commerce and the American Bar Association opposed this revision to the sentencing guidelinesand lobbied intensively to have it stricken. In their view, this threat to the attorney-client privilege and work product doctrine will have a chilling effect on communications with counsel and will impair the ability of criminal defendants to defend themselves at trial. Ultimately, the Sentencing Commission voted unanimously to strike the new language in the commentary regarding waiver. The DoJ guidance to prosecutors regarding such waiver, however, remains in place.
Management of corporations that are targets of criminal or regulatory investigations must remain cognizant that many prosecutors and enforcement personnel do not distinguish between cooperation and capitulation. Management must be prepared in advance for the prospect that information which hitherto would have been protected behind the attorney-client privilege or attorney work product doctrine is likely to be disclosed in a criminal or other type of investigation.