For almost a decade, law reviews and hearing rooms have resounded with cogent arguments that, for corporations at least, the attorney-client privilege has been chilled, eroded, attacked, or even killed by the federal government's misuse of its bargaining leverage. 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 testimony 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.
Daniel C. Richman,
Decisions about Coercion: The Corporate Attorney-Client Privilege Waiver Problem,
DePaul L. Rev.
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