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Waiver of privilege George Terwilliger is correct that prosecutors increasingly are pressing for waiver of attorney-client privilege in assessing cooperation of corporate investigative targets. [NLJ Aug. 15]. The American Bar Association believes that this practice is highly inappropriate and dangerous. The U.S. Supreme Court in the Upjohn case recognized that the government cannot obtain privileged information from corporations because employees would be discouraged from confiding in the company’s lawyers and obtaining the legal advice needed to comply with the law. The government should not attempt to do indirectly what the Supreme Court has said it cannot do directly. Pressure to waive the privilege undermines companies’ internal compliance programs, which depend on individuals who have information speaking candidly with lawyers conducting such programs. The path to legal compliance is best served when companies are able to obtain counsel from lawyers who are fully informed of critical facts. The attorney-client privilege enables the client confidentially to convey such critical facts to counsel. While companies should cooperate with government investigations, they should not be compelled to waive the privilege as part of such cooperation. The ABA House of Delegates, at its annual meeting in Chicago in August, reaffirmed the ABA’s strong position on this important issue. Michael S. Greco Chicago The writer is president of the American Bar Association.

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