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The Bell Keeps Tolling
Selective waiver of the attorney-client privilege is a lonely doctrine indeed. Since the Eighth Circuit first adopted it in the 1977 Diversified Industries case, the notion that a litigant may disclose privileged material to government enforcers without waiving the privilege as to third parties has hardly won fans among federal courts of appeal. Most recently, in June, 2006, the Court of Appeals for the Tenth Circuit weighed in on the viability of selective waiver. The In Re: Qwest Communications Int'l decision is precisely what advocates for selective waiver needed least; it is a comprehensive evaluation, and rejection, of nearly all of the cogent arguments advanced in favor of the doctrine.
The Tenth Circuit's back-to-basics approach to the privilege and work product doctrine is essential reading for corporate counsel faced with the unenviable decision about what to disclose 'voluntarily' to government enforcers or investigators. While it was careful to focus its reasoning on the record before it, the court fundamentally determined that selective waiver is inconsistent with, and fails to promote, the original objectives of the attorney-client privilege and the work product doctrine.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.