When the government investigates or prosecutes alleged corporate crime, a key question commonly emerges: Will the accused client waive attorney-client privilege and disclose relevant communications to the government?
This issue often arises because lawyers are routinely involved in corporate actions and decisions later subject to government scrutiny. “The extensiveness and complexity of the laws governing” corporate affairs “have made legal advice a crucial element of [not only] major business decisions,” but also of “more mundane kinds of corporate activity.” Douglas W. Hawes & Thomas J. Sherrard, Reliance on Advice of Counsel as a Defense in Corporate and Securities Cases, 62 Va. L. Rev. 1, 5 (1976). As the Supreme Court emphasized in Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), relying on attorneys is especially important “[i]n light of the vast and complicated array of regulatory legislation confronting the modern corporation.”
Ordinarily, the client—and only the client—has the authority to decide whether to waive attorney-client privilege on communications with counsel. Where an accused-client is cooperating with a government investigation or asserting an advice of counsel defense in response to formal charges, the waiver analysis is generally straightforward: the accused-client waives privilege and discloses relevant communications to the government. The resulting disclosure often reveals critical information to the government because of the substantial involvement of lawyers in much corporate conduct and decision-making.