Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2008 Decisions about Coercion: The Corporate Attorney-Client Privilege Waiver Problem Daniel C. Richman Columbia Law School,
[email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons, and the Criminal Procedure Commons Recommended Citation Daniel C. Richman, Decisions about Coercion: The Corporate Attorney-Client Privilege Waiver Problem, DEPAUL L. REV. (2008). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2485 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact
[email protected]. DECISIONS ABOUT COERCION: THE CORPORATE ATTORNEY-CLIENT PRIVILEGE WAIVER PROBLEM Daniel Richman* INTRODUCTION For almost a decade, law reviews and hearing rooms have re- sounded with cogent arguments that, for corporations at least, the at- torney-client privilege has been chilled, eroded, attacked, or even killed by the federal government's misuse of its bargaining leverage.1 Yet it is unclear whether this rhetoric is overstated or understated. Given that most federal criminal defendants plead guilty, and that an extraordinarily large percentage of them provide information and tes- timony against others in order to avoid harsh sentences (or to avoid being charged at all), one could as easily say that the Fifth and Sixth Amendments to the U.S. Constitution are on their last legs, as are the rules of evidence and other adjudicatory principles. 2 "Death" or, more formally, "waiver" abounds in the federal system, as does "coercion"-if the term is understood in its ordinary sense.