Blame Enron, Larry Thompson, Eliot Spitzer, overzealous prosecutors or a trigger-happy SEC. Regardless of who started this trend, there's no question the attorney-client privilege is under attack on an alarming number of fronts. Today it's part and parcel of the general counsel's job to deal with broad requests from government officials for documents that a few short years ago unquestionably would have been protected by the privilege or work-product doctrines. When confronted with such a request, the company's choice is grim: waive privilege and hand over everything, or face almost certain indictment or regulatory action.
"We're still creatures of the environment that Enron bred," says A. Ross Pearlson, a partner at Sills Cummis Epstein & Gross in New Jersey. "Since then, the attitude has been that it should be as easy as possible for the government to prosecute white-collar crimes."
Certainly, avoiding indictment will remain companies' chief worry--criminal charges can put a public company out of business. But the consequences of agreeing to waive privilege can be just as draconian.