Clifford Chance
Privilege Under Attack: Vulnerabilities of Legal Privilege Claims in Criminal and Regulatory Investigations
23 January 2018
Recently, a lawyer for former Trump campaign advisor Paul Manafort and his associate Richard Gates was compelled to testify before a grand jury in the Special Counsel’s Office investigation. The SCO sought the lawyer’s testimony to determine whether Manafort and Gates had “intentionally misled [the Department of Justice] about their work on behalf of a foreign government and foreign officials” when they submitted letters to the DOJ's Foreign Agent Registration Unit. In ordering the attorney to testify, the federal district court determined that the attorney-client relationship had been used to “further a criminal scheme” – making false or misleading submissions to the DOJ – so the attorney’s communications with her clients fell within the crime-fraud exception to privilege. While the crime-fraud exception is well established, the district court’s decision in the Manafort case is just one example of recent aggressive efforts to pierce attorney-client privilege in criminal and regulatory investigations. Non-lawyers often misconstrue the scope of attorney-client and work-product protections, assuming that the mere presence of an attorney on an e-mail chain or in a meeting serves to cloak an ensuing communication with privilege. In this piece, we summarize the scope of attorney-client and work-product doctrines and discuss several recent U.S. court decisions that have found documents and communications created in connection with internal investigations to be discoverable. Last, we review key privilege-related developments in foreign jurisdiction that will affect many cross-border investigations.
