April 26, 2005
NACDL Survey on the Erosion of the Attorney-Client Privilege
The National Association of Criminal Defense Lawyers (NACDL) recently conducted a survey that demonstrates that the attorney-client is definitely under attack. The results of the survey can be found on the NACDL website here.
The results are shocking to say the least. For example, one revelation of this survey is that " 87 percent of lawyers said that attorney-client privilege or work-product has recently been challenged; a shocking 25 percent by federal prosecutors, 15 percent by federal regulators, and 16 percent by an opposing party in civil litigation."
The executive summary of the survey also demonstrated that
"More than 47 percent of outside counsel surveyed indicated that their clients had personally experienced an erosion in the protections offered by the privilege and work product doctrine after Enron. These respondents were asked to describe their experiences; approximately 130 text responses were received. An overwhelming number of respondents—approximately 85 percent—reported that DOJ and the SEC frequently require "discussions" of waiver as part of "settlement" negotiations—in other words, in deciding whether to charge a company, accept a plea, or settle civilly. Lawyers reported: (1) that the results of internal investigations are routinely demanded; (2) that individuals are less forthcoming as a result; (3) that indemnification for legal bills and joint defense agreements are a thing of the past; and (4) that the climate is such that waiver is often offered before it is requested—at the cost of individual employees. "
This survey demonstrates the devastating effect of the erosion of the attorney-client privilege in the white collar context.
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