Earlier this month, a judge in the Eastern District of Pennsylvania held that an antitrust compliance policy, prepared by counsel in response to a request for legal advice, but circulated to all of the employees of the company, is not protected under the attorney-client privilege doctrine. Because this was an issue of first impression in the Third Circuit, the district court had to look to other courts to reach its decision. Unfortunately, given the United States Supreme Court’s [erroneous] decision in Mohawk Industries v. Carpenter, this decision cannot be immediately appealed in order to get the Third Circuit’s view.
Nevertheless, the decision raises a number of interesting questions in privilege jurisprudence, including, but not limited to, (1) whether circulating an otherwise-confidential document to all employees deprives it of privilege protection; (2) whether the development of a compliance policy can be considered the provision of legal advice; (3) whether privilege protection should only extend to legal advice that leads to a decision by a client; and (4) whether privilege protection can extend to legal advice not communicating confidential information.
ACC disagrees with the district court’s decision in a number of respects, but the lack of immediate appeal leaves us little ability to correct it at the next level. That said, we would love to hear what you think after you take a look. The decision is available at this link. Enjoy!
