The Erosion of the Attorney-Client Privilege

Welcome to my new Weblog! I hope you'll find it interesting and useful.

I just wrote a White Paper on a topic that concerns me as a corporate/business attorney: the recent erosion of the attorney - client privilege. It's a fundamental part of my relationship with clients. The obligation to keep client's information confidential reminds me that I'm part of a profession and like other professionals, such as medical doctors and clergy, our client's interest come first. The government's policies that attempt to circumvent the privilege and gain access to confidential communications between business attorneys and their clients are undermining a key principle of our legal system.

Here's an excerpt from the White Paper. If you'd like a copy, send me an email at tfranke (at) fitzhewlaw dot com.

"A fundamental part of honest and open communications between attorneys and their clients is the attorney/client privilege. This legal principle, which protects confidential communications between lawyers and clients, is one of the foundations of our legal system.

Increasingly, the Department of Justice (DOJ) is requesting waivers of the attorney-client privilege during an investigation into corporate misconduct. The DOJ has routinely viewed a waiver of the privilege as a sign of corporate cooperation in an investigation.

Corporate lawyers play a key role in helping companies and their officials understand and comply with complex laws and regulations. An open and confidential relationship between company lawyers and board members, business executives, and operating personnel is essential so that lawyers can represent the company effectively and ensure that compliance with laws and regulations is maintained. This relationship is threatened by a Federal government policy designed to make a prosecutor's job easier. While we all agree that corporate misconduct should be investigated and prosecuted if there is evidence of wrong-doing, this objective should not undermine one of the oldest and most sacrosanct privileges under U.S. law."