April 19, 2006

Attorney-client privilege and the government’s actions or policies that might encroach upon it was the topic of an engaging panel discussion Wednesday as part of InsideCounsel’s SuperConference.

Jenner & Block Partner James L. Thompson moderated the discussion featuring panelists Jeffrey C. Eglash, Senior Counsel, Investigations/ Compliance, General Electric Company; William Freivogel, Senior Vice President–Loss Prevention, Aon Risk Services; and Jenner & Block Partner David M. Greenwald.

Mr. Thompson noted the evolution of the doctrine of attorney-client privilege over the past several years, and that in-house attorneys must be vigorous in their defense of it, especially in the face of a government investigation. 

Mr. Eglash, a former U.S. Attorney, outlined possible reasons why the government has taken an aggressive stance toward the privilege doctrine, including the application of it too broadly in a given case.

The current debate over the “selective waiver” of the attorney-client privilege was detailed by Mr. Greenwald.  He offered several recommendations of methods to protect it, including Confidentiality Agreements with the government, and negotiations with the government to limit disclosure of protected material.  Mr. Greenwald also emphasized that the critical free flow of information and candor between an attorney and client could be chilled by the current pressure by prosecutors and auditors for disclosure of protected material.

According to Mr. Freivogel, it is essential to educate the non-legal side of the company about disclosure issues with auditors.  Because disclosures to auditors can provide an avenue for third-party litigants to claim a waiver of attorney-client privilege, he stressed the importance of ensuring that requests to the accounting and other functions of a company be coordinated with the legal department so that responses will preserve privileges.