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May 2006 Archives

Waiver of the Attorney-Client Privilege: A Balanced Approach

In this extensive monograph published by the Washington Legal Foundation, former Attorney General of the United States Dick Thornburgh draws upon his experience as both a prosecutor and a private attorney to explore the increasing tendency of the government to obtain waivers of the attorney-client privilege in corporate criminal investigations. General Thornburgh recognizes the "legitimate needs of law enforcement" but nevertheless defends the vital importance of attorney-client privilege as articulated by the Supreme Court in its 1981 decision, Upjohn Co. v. United States. He urges corporations to find ways to comply with government investigators' demands without waiving privilege and suggests that corporations be afforded the right to appeal waiver requests to high-ranking Justice officials.
The drafters of the Model Penal Code understood the importance of clear mens rea requirements in the criminal law and created a flexible yet clear framework for drafting and interpreting these requirements in criminal statutes. However, federal lawmakers have declined to adopt MPC standards, and this article argues that the result has been chaotic and unpredictable federal jurisprudence with respect to securities-related criminal offenses. Michael L. Seigel suggests how the mens rea requirements of federal securities law might be interpreted in light of the MPC framework and proposes that Congress act to clarify this area of federal law.
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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.