Should the Commission address the issue of attorney-client privilege in the Release accompanying the Final Rules?
The Release should only restate the law of privilege in areas where it is clear, and should avoid discussing the Commission’s preferred resolution of arguable questions of privilege and waiver. It is important that the Release clarify basic evidentiary principles concerning the attorney-client privilege, particularly after opponents of Section 307 and critics of the Proposed Rules have raised privilege concerns that simply do not exist. Reporting information to a corporate client’s board of directors, for example, does not waive the privilege. Neither does a noisy withdrawal in which the lawyer simply informs the Commission that the lawyer is resigning for professional reasons without disclosing further information about the client. The Commission should use the Release accompanying the final rules to clear up any possible misunderstanding concerning these elementary principles of evidence. Questions of privilege and waiver are more ambiguous, however, if an attorney chooses to report
