Trending away from the "culture of waiver?" Doubtful.
A waiver of the attorney-client privilege is not a requirement for cooperation to be considered "extraordinary." This was the message from Susan Merrill of the NYSE, during the final general session of the 2006 SIA Compliance and Legal Division Annual Seminar last month. But Merrill acknowledged that nobody believes her when she says it. Just weeks after Merrill's comments, the U.S. Sentencing Commission struck language from a 2004 sentencing-guideline amendment, that endorsed the practice of compelling corporations to waive the attorney-client and work-product privileges, in order to receive credit for "cooperating" with the government.
The American Bar Association's Task Force on Attorney Client Privilege is currently working with organizations such as the National Association of Criminal Defense Layers and the Association of Corporate Counsel to address an even bigger concern - the internal policy of the U.S. Department of Justice that allows prosecutors to demand a waiver in exchange for reduced or dropped charges. http://www.abanews.org/statementsletters/sttwaiver.html But it's an uphill battle. The Department of Justice has defended the waiver policy and opposed the change to the sentencing guidelines, arguing that a zero-tolerance policy on corporate fraud (and the need to uncover it), often outweigh the need to protect the attorney-client privilege.
