In the early 00s the Justice Department routinely required companies to waive their rights to assert the attorney-client privilege if they wanted to receive full cooperation credit in criminal investigations. The predictable hue and cry from the American Bar Association and other groups led the Department to withdraw from this aggressive posture. However now the attorney-client privilege is under siege from a different direction.
In a fascinating FCPA-related case, the former general counsel of Bio-Rad, Sanford Wadler, is suing his former employer for wrongful termination. Readers of The Man From FCPA will recall the company sustained an FCPA violation leading to a $55MM fine in 2014. Wadler alleges the company fired him for whistleblowing on red flags which indicated the company could have been engaging in bribery and corruption in China. The company counters that he was fired for incompetence, including failing to detect the bribery and corruption which led to the prior FCPA violation and attendant $55MM penalty.
