Tuesday, August 30, 2005

Attorney-Client Privilege Issue and KPMG

One controversial area between defense attorneys and the DOJ has been the attorney-client privilege issue.  It has been a subject of resolutions of the ABA and the NACDL. (see posts here and here).  One aspect of concern has been the government's requirement that the corporation or company waive the privilege in cases where there is a deferred prosecution agreement.  The KPMG agreement here has some interesting language in this regard.  The agreement provides as follows: 

"8. KPMG agrees that its continuing cooperation with the Office's investigation shall include, but not be limited to, the following:

.   .   .   (e) Not asserting, in relation to the Office, any claim of privilege (including but not limited to the attorney-client privilege and the work product protection) as to any documents, records, information, or testimony requested by the Office related to its investigation, provided that:

(I) not withstanding the provisions of this subparagraph (e), KPMG may assert the attorney-client privilege, work product protection, or other privileges with respect to (A) privileged communications between KPMG and its counsel that post-date February 1, 2004 and that concern the Office’s investigation, (B) privileged communications between KPMG and Skadden, Arps, Slate, Meagher & Flom LLP, concerning the IRS’s promoter penalty audit, or (C) any private civil litigation; and

(II) by producing privileged materials pursuant to this subparagraph (e) KPMG does not intend to waive the protection of the attorney-client privilege, work product protection, or any other applicable privilege as to third parties.”

(esp)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2005/08/attorneyclient__1.html

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