The Association of Corporate Counsel (ACC) commended the U.S. Sentencing Commission for removing language from the corporate sentencing guidelines that encouraged government prosecutors to force corporations to waive their right to attorney-client privilege in order to be deemed 'cooperative' in a government investigation.
'The USSC's decision to reverse its policy is very unusual and shows their strong support for both protecting the attorney-client privilege and ensuring effective corporate compliance programs,' said Fred Krebs, president of ACC. 'It is a victory for common sense,' said Fred Krebs, president of ACC.This is the first official government action in recent memory that enhances rather than undercuts the privilege and is particularly important since the Department of Justice often used the deleted language to justify their demands for waivers.'
The Commission asked ACC, a leader on this issue, to conduct a survey of its members to see if the commentary language in the sentencing guidelines was having unintended consequences. The survey, titled The Decline of the Attorney-Client Privilege in the Corporate Context, confirmed that a widespread 'culture of waiver' exists within the government. Nearly three-quarters of both inside and outside counsel who responded agreed - including 40% who agreed strongly - that government agencies now believe that it is entirely reasonable and appropriate for them to expect a company under investigation to broadly waive the privilege. Further, the survey showed that the language in the sentencing guidelines was often cited by the DOJ as supporting their authority to demand waivers.