For Release: March 1, 2007
CFTC's Division of Enforcement Clarifies Cooperation Advisory with Respect to the Attorney-Client and Work Product Privileges
Washington, D.C. – The U.S. Commodity Futures Trading Commission’s (CFTC) Division of Enforcement issued amendments to its 2004 Enforcement Advisory on Cooperation to clarify that the factors contained in the Advisory are meant to encourage strong cooperation among parties in enforcement discussions without eroding the protections of the attorney-client or work product privileges.
The CFTC has long given credit for cooperative conduct by respondents and defendants when determining the appropriate level of sanctions to impose or approve in enforcement actions. The Advisory provides assistance to defendants and their counsel in assessing possible settlement positions and litigation risks. Clarifying the Division’s view on privileged materials helps ensure that parties will continue to seek out advice of counsel in complying with the Commodity Exchange Act and CFTC regulations.
Supporting the revised Advisory, CFTC Commissioner Walter L. Lukken stated, “These changes affirm our current enforcement practice of rewarding significant cooperation but not at the expense of these essential legal protections that greatly enhance compliance with our law.”
The revised Advisory outlines three broad categories of cooperation factors. It also aims to properly balance the interests of rewarding meaningful cooperation with the legal protections provided by the attorney-client and work product privileges by eliminating the prior Advisory’s reference to waiver of these privileges.
This clarification of policy does not reflect a change in Division practice. The CFTC remains receptive to persons and entities who want to provide the highest level of cooperation and produce materials to the CFTC through all necessary means. The revised Advisory will be effective immediately.
Last Updated: April 2, 2007