Whether they should do so or not, clients sometimes disclose information that may be protected by work product and attorney-client privilege to government authorities for use in government investigations or tax audits. These disclosures may be desirable if they help to convince the government that the client has acted lawfully. Nevertheless, attorneys should counsel their clients that a confidentiality agreement with the government will not necessarily protect the information from subsequent disclosure to others.

Whether the position taken in this case becomes the majority or minority position throughout the country remains to be seen. It is clear, however, that this ruling could have a chilling effect on the government's ability to secure cooperation. Other things equal, clients should be less willing to share information with the government if they cannot rely on a selective waiver theory.