An organization's waiver of the attorney-client privilege and/ or the attorney work product protection to obtain leniency in federal court sentencing: what is the brouhaha all about?

Abstract

The guidelines controlling the sentencing of organizations provide for the reduction in an entity's culpability score for self-reporting, cooperation, and acceptance of responsibility. What an organization must do in order to receive the reduction in culpability score changed dramatically in 2004 when additional language was added to Application Note 12 of the U.S. Sentencing Guidelines Manual Section 8C2.5(g) stating that "waiver of the attorney-client privilege and of work product protections is not a prerequisite to a reduction. ... However, in some circumstances waiver of the attorney-client privilege and of work product protections may be required in order to satisfy the requirements of cooperation." Following months of hearings and public comment, the United States Sentencing Commission reversed its position on whether a sentencing court should consider an organization's waiver of the attorney-client privilege and/or of the attorney work product protection in evaluating the organization's "cooperation" as a sentencing factor by proposing to retract the language added by the 2004 amendments. Although that proposal has become effective, it is yet to be determined what the response of the three branches of government will be on the issue of privilege waivers in the context of federal criminal law. This Article gives readers an overview of the development of the use of privilege waivers by organizations seeking credit for cooperation at the time of sentencing for federal crimes, the reaction of both corporations and their lawyers to the waiver issue, and the events leading up to the Commission's change of position.