Attorney-Client Privilege in FCPA Investigation Nullified Based on Crime-Fraud Exception

In a government-led Foreign Corrupt Practices Act (FCPA) investigation, the Third Circuit recently upheld a lower court decision compelling an attorney to testify before a grand jury about attorney-client privileged communications on the basis that those communications fell under the crime-fraud exception to the attorney-client privilege. The Third Circuit’s aggressive application of the crime-fraud exception here cautions companies to ensure that privileged advice be evaluated carefully and, if rejected, that the record reflect the reasons for doing so.

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