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Second Circuit Reins in Risk of 'At-Issue' Attorney-Client Privilege Waivers
We are proud to say that we live by the Rule of Law. But in law, as in most other endeavors, exceptions can swallow the rules if the rule-makers are not careful. One area where exceptions pose a particular concern is when the privilege over communications with lawyers is called into question because those communications have been invoked to show someone's good faith in attempting to follow the law. It seems only fair to require someone to disclose what her lawyer actually said when she implies that she was acting in good faith because a lawyer told her that her conduct was lawful. But how far can the exception go before it swallows the rule and opens the door to disclosure of all legal communications, even when the substance of the communication is not “at issue”? This was the question recently before the United States Court of Appeals for the Second Circuit, which tried to bring clarity to a rule that has confused the courts for more than 30 years.
Background
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.