Mea Culpa: Why Corporate Waivers of Attorney-Client Privilege Have not Increased the Prosecution of Corporate Executives

Up until the most recent financial crisis, the Justice Department consistently prosecuted individuals responsible for corporate misconduct. In recent times, few executives are prosecuted for their vast corporate misconduct and most received a deferred prosecution agreement in exchange for waiving the corporation’s attorney-client privilege. This Note discusses how the waiver of attorney-client privilege has, in effect, reduced the prosecution of executives responsible for corporate crimes. It argues that the Justice Department must conduct its own investigations into corporate misconduct and should not rely on a corporation waiving its attorney-client privilege in exchange for a lenient deal. Successfully reducing corporate misconduct depends, in part, on the government’s ability to deter the individuals running the corporation, which cannot be met when leniency replaces investigative work.