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Privileged Communications and the One-Sided Nature of Crime-Fraud Litigation

By Jeffrey A. Neiman and Justin A. Thornton

The attorney-client privilege is viewed as the most sacred of all legally recognized privileges. The preservation of the privilege is essential to the fair operation of our legal system as it promotes and encourages open communications between the client and the attorney; this, in turn, allows the attorney to provide effective and comprehensive advice. The privilege is not absolute, but as demonstrated on May 10, 2011, by the dismissal under Rule 29 of a criminal indictment charging GlaxoSmithKline associate general counsel Lauren Stevens, the piercing of the privilege should occur only in exceptional circumstances. See United States v. Stevens, Case No. RWT-10-694 (D. MD).

As today's regulatory environment becomes more invasive, the government is more frequently attempting to examine and evaluate legal advice provided by corporate attorneys to their clients when it believes that a client is using a lawyer to commit a crime or fraud. The crime-fraud exception to the attorney-client privilege allows the government, often ex parte, to obtain a court order demanding the production of what were once thought to be privileged communications.

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