August 06, 2005

The distinction between, and practical applications of, the attorney-client privilege, duty of confidentiality and work product doctrines, were among the topics discussed August 6 by a panel of distinguished legal professionals at the American Bar Association Annual Meeting. 

Jenner & Block Partner David M. Greenwald honed in on the doctrine of selective waiver that can control an increasingly common scenario in which a client is confronted with deciding whether to reveal confidential attorney-client communications to a government agency, at the risk of waiving privileges with respect to other third parties, such as adversaries in civil litigation.

Consider, he said, a company that is under scrutiny by the government for alleged wrongdoing under the Sarbanes Oxley Act of 2002.  He noted that potential leniency in the investigation depends on the company’s “full cooperation” with the government’s broad demands for disclosure.  Yet, “full cooperation” may require waiver of the attorney-client privilege, duty of confidentiality or the work product doctrine. 

At issue in such dilemmas is whether the company can disclose the confidential information to the government without also waiving the privilege in future civil litigation, said Mr. Greenwald.  “Corporations want to obtain leniency, but they don’t want to expose themselves to billions of dollars of potential civil liability.” 

According to Mr. Greenwald, there is a clear trend in federal case law against granting selective waivers.  “Even if the government enters into a confidentiality agreement with the company, it may be deemed an adversary and lead to waiver of the attorney-client privilege and work product protection.”  He pointed to the recent decision in In re Columbia/HCA Healthcare Corp. Billing Practices Litig. in which the U.S. Court of Appeals for the Sixth Circuit held that a disclosure of confidential information to the government generally waives the privilege and work product immunity as to all other outsiders, even when the parties have entered into a confidentiality agreement.

In addition to Mr. Greenwald, panelists included Dan S. Brandenburg, Partner at Sanders, Schnabel & Brandenburg, P.C.; Robert F. Drinan, Professor of Law at Georgetown University Law Center; William Freivogel, Senior Vice President for Loss Prevention at Aon Risk Services; and Francis Prell, Partner at Holland & Knight LLP.  The panel was moderated by Douglas R. Richmond, Senior Vice President for Aon Risk Services.