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The Selective-Waiver Doctrine: Is It Still Alive?
The attorney-client privilege is sacrosanct in our criminal-justice process. Its confidentiality protections are fundamental to effective representation. Yet in recent years, the attorney-client privilege and government demands for its waiver have become a controversial topic affecting companies seeking the benefits of cooperation in criminal investigations. Both the courts and Congress have struggled to determine what actions constitute a waiver of the privilege and to what extent. Meanwhile, corporations have had to balance the benefits of disclosing privileged information to government investigators against the risk of dramatic adverse consequences in parallel litigation and investigations.
Throughout this debate, the “selective-waiver doctrine” has been trumpeted by some as a compromise solution, although it has been rejected by U.S. courts. While a July 2008 California state court decision and proposed changes to the Federal Rules of Evidence each had the potential to give the doctrine new vitality, neither was ultimately successful. Nonetheless, they may be a signal of renewed interest in the 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.