In the corporate setting, government investigators increasingly ask corporations to waive the attorney-client privilege as part of the "cooperation" necessary to receive incentives. In practice, however, these cooperation incentives have led to what has become known as a "culture of waiver," where waiver of the privilege in the face of investigation has become virtually essential. One way courts have sought to diminish the negative externalities of waiver is through the doctrine of selective waiver. Selective waiver allows the corporation to waive the attorney-client privilege, but only to the government agency during the course of the investigation, while still retaining the right to assert the privilege against third parties.
Thus far, the debate over selective waiver has focused on whether selective waiver should be judicially recognized and how to solve the unsettled nature of the law in the courts. Both the culture of waiver and the uncertainty regarding the selective waiver doctrine's validity have created tension between a corporate executive's personal interests and fiduciary duties. As currently implemented, the selective waiver doctrine may promote a perverse incentive for corporate managers to waive the corporation's attorney-client privilege in order to be deemed "cooperative" individually and thereby decrease their own personal criminal liability while potentially subjecting the company to extensive third-party liability.
Erin M. Carter,
Pragmatic Selective Waiver: Re-Aligning Corporate Executives' Personal Interests with Those of the Corporation Amidst Government Investigations,
62 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol62/iss1/6