Upjohn Co. v. United States as Support for Selective Waiver of the Attorney-Client Privilege in Corporate Criminal Investigations

Abstract

In 1981, the U.S. Supreme Court in Upjohn Co. u United States clarified the application of the attorney-client privilege to corporations and recognized three concerns in deciding whether such a privilege applies: the predictability as to which communications will be disclosed to third parties, the promotion of the free flow of information between clients and attorneys, and the encouragement of corporate self-policing and cooperation with investigations. Recently, however, a new debate over the attorney-client privilege has arisen in the corporate context— whether to recognize a selective waiver of the attorney-client privilege where communications have been disclosed already to one government agency but not to civil litigants or other government agencies. This debate has engendered conflicting responses from federal circuit courts, the U.S. Department of justice, the Advisory Committee on Federal Evidence Rules, and Congress. This Note argues that by adhering to the principles laid out in Upjohn, courts, lawmakers, and rulemakers should resolve the conflict in favor of recognizing a selective waiver of the attorney-client privilege.