Section Six: How Corporations Should Respond -- Problems of Concurrent Civil and Criminal Investigations (From Readings in White-Collar Crime, P 261-273, 1991, John Lichtenberger, ed. -- See NCJ-129577)

• NCJ Number: 129591
• Author(s): J Glekel
• Date Published: 1991
• Length: 13 pages
• Sale Source: Meckler Publishing
• Publication Type: Legislation/Policy Description
• Language: English
• Country: United States of America

Annotation

When a corporation provides information to its adversary in a civil or criminal investigation, whether voluntarily or in response to a formal demand, the corporation may be deemed to have inadvertently waived the attorney-client privilege or work-product privilege in concurrent or subsequent civil or criminal proceedings.

Abstract

The classic statement of the attorney-client privilege was made in the 1950 case of United States v. United Shoe. The court held that the privilege applies only if the asserted holder of the privilege is or sought to become a client, the person to whom the communication was made is a member of the bar and is acting as a lawyer, the communication relates to a fact of which the attorney was informed properly, and the privilege has been claimed and not waived by the client. The work-product privilege is codified in the Federal Rule of Civil Procedure. Unlike the attorney-client privilege, the work-product privilege is available only when material is prepared in anticipation of litigation. The work-product privilege is not absolute and is somewhat less vulnerable to waiver than the attorney-client privilege. Under general principles of attorney-client and work-product privileges, it is possible to waive either privilege implicitly, by disclosing privileged information or materials to a third party. Ways for corporations faced with criminal charges to avoid issue preclusion in subsequent litigation are discussed, and general principles of the law governing collateral estoppel in Federal courts are reviewed. 2 notes