Protecting Privilege

When Judge Lewis A. Kaplan of the Southern District of New York equated the use of the 2003 Thompson Memo to a "proverbial gun" prosecutors held to the head of accounting firm KPMG during a tax shelter investigation, he helped grease the wheels in the fight to restore attorney-client privilege.

"Those who commit crimes--regardless of whether they wear white or blue collars--must be brought to justice," Kaplan wrote in his June 2006 opinion. "The government, however, has let its zeal get in the way of its judgment. It has violated the Constitution it is sworn to defend."

"In the minds of judges and prosecutors, there is a distinction between inside and outside counsel," Newkirk said. "Judges in particular are far more respectful of material that's provided through outside counsel, rather than what's generated by inside counsel."

Accidents Happen

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