Preserving the Corporate Attorney-Client Privilege

01 Jan 2010

This Article argues that, while legislation such as the Attorney-Client Privilege Protection Act ("ACPPA") is necessary to preserve that corporate attorney-client privilege, any such legislation must include judicial oversight to deter prosecutorial misconduct effectively. Part II examines the costs and benefits of granting corporations the attorney-client privilege in criminal investigations. It concludes that the benefits of the privilege fat outweigh the costs and that the privilege must be safeguarded from unnecessary infringement. Part III traces the evolution of the DOJ's waiver policies that have threatened the corporate attorney-client privilege. It also examines the costs and benefits of the waiver policy and finds that the costs of the policy are substantial compared to the benefits. Thus, it concludes that congressional intervention is necessary to protect the corporate attorney-client privilege. Part IV argues that Congress should enact the ACPPA or similar legislation, but that there must be a provision in the legislation that permits courts to review charging decisions where the corporation alleges that the DOJ violated the statute. Thus, it outlines a proposal for overseeing prosecutorial corporate charging decisions that involve waiver of the corporate attorney-client privilege. It concludes that the benefits of this procedure prevail over the costs and that this proposal is more effective than the alternatives.