Deferred prosecution agreements and legal professional privilege/attorney-client privilege: English and US experience compared

Stockdale, Michael, Mitchell, Rebecca and Imwinkelried, Edward (2021) Deferred prosecution agreements and legal professional privilege/attorney-client privilege: English and US experience compared. Journal of International and Comparative Law. ISSN 2313-3775 (In Press)

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Abstract

The ability to assert legal professional privilege is recognised in English law as a fundamental human right. In the US attorney-client privilege is one of the most sacrosanct privileges. The use of deferred prosecution agreements (DPAs) in the US and England and the part that corporate cooperation plays raises the concern that if cooperation requires waiver of privilege, privilege is effectively otiose in this context. In the US, DPAs rekindle evidential and procedural issues of selective waiver and judicial oversight. We contrast the role of the English courts in providing judicial oversight of DPAs with the more limited degree of judicial involvement in the US. We analyse the intersection of privilege and DPAs, evaluating the requirements for cooperation with the prosecutor and the impact on the entity’s ability to assert privilege. We consider whether waiver of privilege forms an essential constituent of cooperation and the possibility and consequences of limited/selective waiver. The optimum position is that waiver should not be perceived as a prerequisite to co-operation for the purpose of obtaining a DPA. The US approach to the relationship between co-operation and waiver of privilege comes closer to the optimum position than does the English approach. In contrast, active judicial oversight in England is preferable to the more limited exercise in the US, and the availability of limited waiver in England provides a degree of protection to the corporation that corporations lack when waiving privilege or considering whether to do so.

Item Type: Article
Uncontrolled Keywords: Upjohn warnings, judicial oversight, waiver of privilege, limited waiver, attorney-client privilege, legal professional privilege, eferred prosecution agreements
Subjects: M100 Law by area
M200 Law by Topic
M900 Other in Law
Department: Faculties > Business and Law > Northumbria Law School
Depositing User: Rachel Branson
Date Deposited: 19 Apr 2021 13:25
Last Modified: 19 Apr 2021 13:30
URI: http://nrl.northumbria.ac.uk/id/eprint/45947

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