When does a company have the choice to waive its attorney-client privilege in the USA?

Abstract

When US government enforcement agencies investigate, they often require or pressure parties to waive the attorney-client and work product privileges, but there is no uniform standard regarding when demanding or requesting such waiver is appropriate. Deciding whether to advise your client to waive the privilege can be vexing for counsel. This paper reviews the waiver policies of US federal enforcement agencies overseeing the financial services industry, including the US Department of Justice, Securities and Exchange Commission, Commodity Futures Trading Commission and Financial Industry Regulatory Authority, as well as certain others. Further, it provides some guidance to parties and counsel regarding when waiver may be necessary or advisable. It concludes with support for a uniform standard that is protective of the attorney-client and work-product privileges, permitting the privilege holder to make a true choice as to whether to waive, free from any obligation or pressure to waive from US agencies.