The in-house bar has recently made noteworthy progress in the ongoing battle to protect the attorney-client privilege. The focus of most of the efforts to date has been on protecting privilege from attacks made by outsiders: prosecutors, enforcement officials and plaintiffs' class action lawyers, to name a few. A broad-based coalition made up of my organization, the Association of Corporate Counsel (ACC), and partner organizations--including the U.S. Chamber of Commerce, the ACLU and others--recently convinced the U.S. Sentencing Commission to revoke language in the organizational sentencing guidelines that suggested prosecutors could demand privilege waivers from companies under investigation as a condition of being deemed cooperative for charging and sentencing purposes.
Hearings before the U.S. Congress' House Judiciary Committee in March produced bipartisan support for protecting privilege. The Stein decision by Judge Lewis Kaplan, in which he lambasted the DOJ for unconstitutional practices used against KPMG partners, soon followed.