Colin P. Marks


This article will explore both the various problems that arise with a policy that essentially mandates waiver of the attorney-client privilege as well as the limited appeal of the selective waiver theory as a compromise position. It concludes that selective waiver is inadequate in addressing the many problems created by policies that coerce waiver and that a more desirable solution is to eliminate or amend the governmental policies that coerce waiver. Part II of this article explains and explores the metes and bounds of the attorney-client privilege and work-product protection. Part III explains the development of the selective waiver theory, as well as its relation to the current charging policies of the DOJ. In Part IV, the various problems that arise from the DOJ's policy are explored. Part V then discusses the adequacy of selective waiver in addressing these problems, and ultimately concludes that selective waiver essentially eviscerates the purposes of attorney-client privilege and work-product protection and thus has limited appeal. Finally, Part VI concentrates on what efforts are underway to rectify the situation and what efforts can be made in the future to restore the sanctity of the attorney-client privilege to its pre-1999 status.

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