Of Coerced Waiver, Government Leverage, and Corporate Loyalty: The Holder, Thompson, and McNulty Memos and Their Critics
Since 1999, the US Department of Justice has had a policy that the government may consider a corporation’s willingness to waive its attorney-client privilege in evaluating whether to prosecute the corporation. This policy has been widely criticized on the ground that it induces "coercive" waivers. This criticism is unconvincing. First, the mere threat of prosecution is not unduly coercive; otherwise, plea bargains would be unenforceable. Second, there are many possible reasons for any increase in waivers independent of the government policy. Third, the policy will not have a significant impact on cooperation by corporate employees in government investigations because the corporate privilege does not protect employees and has numerous limitations. Corporations have often waived their privilege to assist in prosecuting employees. Their reluctance to waive in cases, such as recent corporate scandals, involving wrongdoing by upper management is not a sufficient reason to abandon the policy.