Selective Disclosure: The Abrogation of the Attorney-Client Privilege and the Work Product Doctrine

Abstract

This Comment addresses an emerging problem of the utmost importance, identified by public and private companies, the government, and academia in the legal and business environments. Companies are expected both to implement controls for dealing with fraud internally and to provide their auditors with detailed information on a wide range of corporate issues, even if such information includes attorney-client privileged communications or work product. This expectation has shaken the framework of the attorney-client privilege and the work product doctrine.

As early as 1977, federal courts began to create an exception to the attorney-client privilege and work product doctrine. This exception, now known as the "limited waiver" or "special exception, allows corporations disclosing attorney-client privileged communications to the Securities and Exchange Commission ("SEC" or "Commission"), or other governmental investigatory bodies, to maintain the privileged status of those communications after disclosure. Part I of this Comment provides the history of the attorney-client privilege. Part II provides the history of the work product doctrine. Part III details a history of the weakening of the attorney-client privilege and the work product doctrine in relation to the special waiver. Part IV gives an overview of the current state of selective waiver law and an analysis of how circuit courts and district courts differ in their reasoning and holdings. Part V addresses the areas of business and law where the adoption or denial of a selective waiver may have drastic implications, and what those implications may mean for the limited waiver. Part VI concludes this Comment.