Waiver, Round Two: The McNulty Memorandum

Let me be very clear: A corporation that chooses not to waive the privilege will not necessarily be charged. Cooperation is but one factor in the analysis and waiver is considered in weighing the adequacy of the cooperation, but is not a litmus test for cooperation."¹-- Deputy Attorney General Paul J. McNulty

Deputy attorneys general come and go and so do the memorandums. It's time for round two of the attorney-client and work product privilege waivers. In my Sept./Oct. 2006 column, I discussed the status of the waivers as they relate to a company's cooperation with authorities in a federal investigation. Based upon the time-honored and constitutionally entrenched importance of ensuring confidential relations between attorneys and their clients, I emphasized the significance of preserving the privileged documents of corporate executives, counsel, and employees even though the federal government could seek waiver of them during a federal investigation.