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White Collar Defense & Compliance Developments in Criminal Law, Federal Case Law and Statutory Developments

Category Archives: Attorney-client privilege

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Third Circuit Endorses Use Of In Camera, Ex Parte Witness Interview By Judge To Determine Whether Crime-Fraud Exception Justifies Compelling Attorney To Disclose Privileged Conversation

Posted in Attorney-client privilege

Alain Leibman writes: Twenty-five years ago, the Supreme Court in United States v. Zolin, 491 U.S. 554 (1989)  endorsed the use by district judges of in camera and ex parte review of privileged documents in order to determine whether the privilege was vitiated by the crime-fraud exception.  The Court held that a factual predicate to… Continue Reading

Corporation’s Attorney-Client Privilege Extends To Counsel’s Communications With “Functional Employees” Outside The Company

Posted in Attorney-client privilege

Counsel conducting an internal investigation immediately face two related and important tasks: identifying the “client” group whose communications with counsel are within the attorney-client privilege exclusively held by the corporation and avoiding, through corporate Miranda warnings and other techniques, a subsequent claim by any of the interviewee-employees that they jointly hold the privilege because counsel… Continue Reading

District of Columbia Circuit Court Extends Reach Of The Work Product Doctrine Over Materials Created By Or Shared With Outside Auditors

Posted in Attorney-client privilege

Corporate counsel, whether in-house or outside, often generate a substantial body of analytical material in the course of providing guidance to management. Often, that confidential material must be shared with outside consultants and experts when the subject matter — such as accounting and tax determinations or intellectual property questions — requires their input, and those… Continue Reading

Lawyers’ botched internal investigation does not prevent prosecutors from using CFO’s own statements against him

Posted in Attorney-client privilege

The Ninth Circuit recently issued a much-awaited opinion on the application of the attorney-client privilege in the area of a corporate internal investigation conducted amidst an options backdating scandal. The anticipation was enhanced because the district court had controversially concluded that the outside counsel who conducted the investigation had likely committed multiple ethics violations and… Continue Reading

Attorney Client Privilege Protection Act of 2008 (ACPPA)

Posted in Attorney-client privilege

The attorney client relationship is a time-honored and sacred relationship. It is black letter law that the attorney-client privilege prevents an attorney from disclosing to a third party any confidential communications made during the existence of an attorney-client relationship. This privilege fosters truthful and honest dialogue between the lawyer and the client. With certain very… Continue Reading