Usually I don’t do this, sticking pretty much to China-related matters. However, this U.S. legal issue is quite thought-provoking, and I think applies to any jurisdiction that has an attorney-client privilege.

Here’s the issue (from a Washington Post article):

Big business, represented primarily by the U.S. Chamber of Commerce, could not attack white-collar criminal enforcement head-on. Instead, it enlisted the aid of its lawyers, including the American Bar Association and the Association of Corporate Counsel, in a more oblique assault. Their strategy was to mount an all-out offensive against a seemingly obscure trend: the Justice Department’s increasing insistence that corporations waive their attorney-client privilege as part of their cooperation with government investigators.

Through experience, government lawyers have learned that the efficiency of white-collar criminal prosecution can be significantly improved when companies facing indictment cooperate and provide relevant information. This way, prosecutors can get to the bottom of complex criminality and promptly indict those responsible. However, unlike an ordinary criminal who cooperates by telling what he knows, a corporation only "knows" what its employees tell it. Often, information relevant to a prosecution has been gathered by the corporation’s counsel. Therefore, to cooperate, the corporation must waive its attorney-client privilege.

The reason the article jumped out at me was that as a corporate lawyer, I am privy to lots of information from management, employees and third parties that could potentially be used in a future lawsuit. However, if the client waived the privilege, then I would generally be OK with releasing whatever information I had – it’s the client’s work product, after all.

Here is where things get tricky. Assume that all of this was going on in China, not the U.S. Over here, client communication often covers sensitive subjects like corruption, tax avoidance, etc. Even if the client were to waive privilege, the lawyer may be stuck with disclosing advice that might not look very kosher in the light of day. Now, that being said, a good lawyer knows how to discuss sensitive areas in an appropriate manner (i.e. discussing what the client is actually doing without going so far as to endorse any inappropriate activity). But an inexperienced lawyer might say a lot of stupid things about what his client can/can’t do according to business standards that could get the lawyer into a lot of trouble.

What this could mean in actual practice is that with a policy such as the one discussed in the Post article, a lawyer might think twice about being candid with his client. Remember that in most places, the privilege can be waived by the client, but the attorney has no control over this. I certainly would be much more conservative with my advice if I knew that something like this was possible.

Interesting that the article does not discuss what effect this might have on the practice of law. Granted, this is not the number one goal here, effective law enforcement is. I’m biased, but it pisses me off when I read that disagreements over this policy are "hugely overstated." Most folks really don’t understand the issue or how it relates to providing advice to clients, and since lawyers are involved, our complaints are sort of ignored. This article portrays this as another issue where big business is trying to get away with criminal activity – what’s worse is that the writer here is a law professor, yet does not take into account the practice of law. For shame.