SEC Releases New Guidance Manual Reflecting Increased Protections of Privilege

Oct 7, 2008 – In yet another positive development in the fight to protect privilege in corporate investigations, the SEC posted on its website a new Enforcement Manual for guidance to investigatory staff. This new guidance closely tracks the protections for privilege found in the new guidance adopted by the Department of Justice in late August pursuant to Deputy Attorney General Filip’s release of a new version of the US Attorney’s Manual. ACC is part of a coalition which has successfully scrutinized and delivered strong criticism of government encroachments on established privilege rights of corporations.

Significantly, the new SEC guidance directs staff to consider that “[a] party’s decision to assert a legitimate privilege will not negatively affect their claim to credit for cooperation.” However, it also continues to cite to the Seaboard Report (the SEC’s equivalent policy to the Thompson / McNulty Memo standards on privilege waiver and expected corporate cooperation), so ACC’s work to protect attorney client privilege in this regard is certainly not over. Nonetheless, the new SEC guidelines are an encouraging development for in-house counsel.