Standing-room only crowd weighs in with panelists on importance of attorney/client privilege

U.S. Attorneys don't seek waivers of attorney/client privilege as often as people think, said Debra Yang, U.S. Attorney for the Central District of California, although it is relatively common in high-profile cases. Yang, speaking for herself, was a panelist at "Attorney Client Privilege Under Siege: Has the Erosion of the Privilege Placed Confidential Communications in Jeopardy?" The Section of Litigation sponsored the program Aug. 4 at the Hawaii Convention Center.

Bill Ide, chair of the ABA Task Force on Attorney-Client Privilege, countered that the "client community believes very strongly that they can't speak to their lawyer," and that perception means a great deal. [YourABA spoke to Ide about the issue of attorney client privilege this past April.]

The nuance of whether waiver is officially demanded, requested or simply implied is very important, the panelists noted. Randall Lee, director of the U.S. Securities and Exchange Commission's Pacific region, noted that there is a difference between a request and a demand: "tone matters." Judith Miller of San Francisco responded that the "tone of exchange [between government officials and corporate counsels] has changed."

The program's focus, under moderator Brad Brian, then-chair of the Section of Litigation, turned to what kind of situations most often lend themselves to a request for a waiver, the feeling that some lawyers tend to overmark documents as privileged, and the ethical tensions between representing the company versus advising an individual within the corporation that one represents.

The standing-room only crowd posed several questions to the panel's experts, as well as offering personal cases. Many attendees expressed the view that Ide wrapped up with, which was that there is a "very real threat" to the attorney/client relationship. What is happening is an erosion of the culture that has developed over the past 500 years.

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