While safeguarding the company’s attorney-client privilege usually is one of counsel’s highest priorities in a government investigation, there are times that intentionally waiving the privilege may be advantageous. The reasons for contemplating a waiver of privileged information vary. For instance, asserting the affirmative defense of reliance on advice of counsel, which may negate intent in civil and criminal actions, generally requires disclosure of attorney-client communication. See In re Grand Jury Proceedings, 219 F.3d. 175, 182 (2d Cir. 2000) (discussing the waiver required in an advice-of-counsel defense). Sharing an internal investigation into alleged wrong-doing with the government also requires some disclosure of privileged communication.
Regardless of the reason, the decision to waive privilege should be made within a consistent framework that evaluates the risks and rewards it presents to the company. This framework, which is discussed below, will assist counsel in advising a client about whether to waive the privilege in an investigation.
