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Attorney-Client Privilege Updates
New SEC Privilege Guidelines Track Recently Issued U.S. Attorney Manual Reforms
The Securities and Exchange Commission (SEC) recently released a new Enforcement Manual, which largely adopts the new Justice Department guidance respecting the privilege in corporate investigations. While they may not be a complete solution, these new guidelines are a welcomed change and are a huge step toward revision of the failed waiver policies that ACC and its coalition partners have been fighting for the agency to reconsider. The SEC manual has the effect of replacing current privilege waiver policies outlined in the Seaboard Report (which did not recognize work product protections and allowed regulators to demand attorney-client privilege waiver as a condition of cooperation). To review the new SEC Enforcement Manual, click here. To review the new U.S. Attorney’s Manual, click here.
DOJ Drops Policy That Corporations Must Waive Privilege When Under Investigation
The DOJ released new corporate prosecution guidelines that parallel the requirements set forth in the Attorney-Client Privilege Protection Act in an apparent effort to forestall the legislation. While ACC will continue to pursue legislation (other agencies' policies, such as SEC, DOL, IRS, HUD, etc. are not curtailed by DOJ's reversal and still must be addressed), this was nevertheless a stunning victory for the Coalition to Protect the Attorney Client Privilege. The new policy is now part of the DOJ's attorney handbook, and increases the likelihood that it will be taken seriously by local prosecutors, and makes violations of the policy actionable in terms of enforcement or complaints by companies regarding inappropriate department or prosecutor abuses of the mandate. The New York Court of Appeals Affirms Ruling on Privilege
On October 16, ACC filed an amicus brief in New York v. Kozlowski and Schwartz,
opposing an attempt by former Tyco executives to obtain attorney work
product by overturning the lower court ruling which denied their
request for protected witness interview notes and memoranda, all of
which were generated by outside counsel in a corporate internal
investigation. Judge Ciparick of the Court of Appeals affirmed the
earlier ruling, effectively sustaining protections corporations have
had to prevent disclosure of privileged material – precisely what the
ACC sought in its brief. ACC had opposed the executives’ arguments,
stating the appeal was "a direct challenge to the ability of a
corporation to control its right to assert or waive the protections."
Judge Ciparick, in her decision writes, “[c]ertainly, it is possible
for attorneys to assist prosecutors without divulging their trial
preparation materials. Absent some other proof, we conclude that
Supreme Court properly held that defendants had not established any
disclosure of ... work product to the People." For more on this story, visit the ACC Privilege Page.
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ACC’s Value Challenge: Re-Connecting Legal Costs to Their Value
Insights from Laura Stein, General Counsel for The Clorox Company and ACC 2008 Board Chair
“I’m interested in finding firms that want to help us succeed and grow our business: they need to learn what we do, what drives us, what makes our CEO crazy, what’s going on in our industry, what our staffing and processes are, and so on. Why don’t firms invest in an institutional understanding of who we are and what we want?”
“I have a hard time finding firms that are willing to take risks, build a collaborative team, consider alternative fees and staffing of my matters, and actively manage the budgets I have to live within. They just want to sell their inventory of hours and won’t consider new ways to work.”
Do these statements sound familiar to you? If so, read on here.
To learn more about the ACC Value Challenge and how you can get involved, visit the links below:
• ACC Value Challenge Home Page
• ACC Value Challenge Launch Program Webcast
• Join the ACC Value Challenge Community
• ACC Value Challenge Tools & Resources
• ACC Value Challenge Model
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ACC’s CLO Club
On Tuesday, October 21, please join us for the signature ACC CLO Club sessions during ACC’s 2008 Annual Meeting in Seattle, WA at the Washington State Convention & Trade Center. Hosted by Brad Smith, Microsoft’s CLO, and Laura Stein, ACC’s Board Chair and CLO of The Clorox Company, this year’s ACC CLO Club sessions will focus on Pro Bono and Diversity and on Corporate Social Responsibility.
Open only to CLOs, ACC’s CLO Club is a sophisticated networking forum that hosts peer-to-peer discussion groups targeted to the unique executive practice, management, and benchmarking needs of chief legal officers. Session format includes executive roundtable discussions and large group information sharing.
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