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

Mitchell, Rebecca, Imwinkelried, Edward and Stockdale, Michael (2021) Deferred prosecution agreements and legal professional privilege/attorney-client privilege: English and US experience compared. Journal of International and Comparative Law, 8 (1). pp. 283-314. ISSN 2313-3775

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Abstract

The ability to assert legal professional privilege is recognised in English law as a fundamental human right. In the United States, attorney– client privilege is one of the most sacrosanct privileges. The use of deferred prosecution agreements (DPAs) in the United States and England and part that corporate cooperation plays raise the concern that if cooperation requires waiver of privilege, privilege is effectively otiose in this context. In the United States, 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 United States. 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 cooperation for the purpose of obtaining a DPA. The US approach to the relationship between cooperation 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 United States, 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.

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