What is the attorney-client privilege?
Attorney-client privilege is the right of clients to refuse to disclose confidential communications with their lawyers, or to allow their lawyers to disclose them. It is the client's privilege, not the lawyer's, and is the earliest known “privileged communication” in the law. The attorney-client privilege is viewed as fundamental to preserve the constitutionally based right to effective assistance of legal counsel, in that lawyers cannot function effectively on behalf of their clients without the ability to communicate with them in confidence.
What is the work product doctrine?
The work product doctrine provides protection from disclosure through the legal process of pre-trial "discovery" of certain documents and other tangible things prepared by a lawyer in preparation for or anticipation of going to trial. Examples of the kinds of things protected by the doctrine are memoranda reflecting mental impressions, conclusions, opinions or legal theories developed by lawyers as they prepare for trial.
Why are the attorney-client privilege and work product doctrine important?
The attorney-client privilege is the bedrock of the client’s constitutionally based right to effective assistance of counsel. From a practical standpoint, it plays a key role in helping clients, including companies, to act legally by permitting them to seek guidance on what the law allows and requires and how to conform their conduct to the law. In addition, the privilege allows organizations such as corporations to investigate past conduct by corporate officers and employees, to identify shortcomings and remedy problems as soon as possible, by ensuring that the client can communicate fully with the investigating lawyer without risk of public exposure. That benefits the corporations, the investing community and society-at-large. A related concept, the work product doctrine underpins our adversarial justice system. It allows lawyers to prepare for litigation without risk that their work product and mental impressions will be revealed to court adversaries, undermining their own legal position.
Are communications with lawyers the only types of communication protected as confidential?
No. Communications between other persons with special relationships also are accorded confidentiality protections, or “privileged” status. All of these reflect a societal view that it is more important to foster full and frank communication between people with specific relationships than it is to allow others to break the protection of confidentiality that such privileges provide. Among other privileged communications are priest-penitent communications, between clergy and those whom they counsel; doctor-patient communications, allowing people with physical or mental illness to consult physicians in confidence; and, under certain circumstances, spousal communications, which can protect from forced disclosure confidential conversations between married couples.
Why does the ABA have a Task Force on the Attorney Client Privilege?
The ABA Task Force on the Attorney Client Privilege was created in October 2004 in response to what was perceived as a growing trend to encourage or coerce corporations to waive their privilege in exchange for lenience in government investigations, prosecutions or sentencing for alleged corporate crime.
What is the Thompson Memorandum?
The memorandum, written in 2003 by then-Deputy Attorney General Larry Thompson, expanded on preexisting Department of Justice policy in directing U.S. Attorneys to weigh various factors in determining whether corporate targets of investigations had cooperated with the Department of Justice sufficiently to qualify for “cooperation credit,” when the prosecutors were making decisions about seeking indictments or recommending sentences. Among the factors Thompson said prosecutors should consider was whether the corporation waived its attorney-client privilege and work product protection.
Why shouldn’t prosecutors consider whether corporations are willing to help the government investigate possible crime?
Willing cooperation is one thing; coercion is something else entirely. The ABA believes that in the aftermath of the Thompson memorandum many federal prosecutors routinely coerce corporations to waive their privileges, demanding such waivers at the onset of investigations before exercising other options such as grand jury subpoenas or warrants.
What evidence is there to support that charge?
An on-line survey of more than 1,200 in-house and outside corporate counsel, released in March 2006 by the American Bar Association, the Association of Corporate Counsel and the National Association of Criminal Defense Lawyers, documented that nearly 75 percent of corporate counsel believe a “culture of waiver “ has evolved among federal agencies in which prosecutors and regulators believe it is reasonable and appropriate for them to expect companies under investigation to broadly waive attorney-client or work product protections. The survey found 52 percent of in-house respondents and 59 percent of outside counsel reported a marked increase in waiver requests as a condition of cooperation credit in recent years. The survey is accessible at http://www.acca.com/Surveys/attyclient2.pdf
What is the McCallum Memorandum?
In an attempt to address growing concerns being expressed about government coerced waiver, then-Acting Deputy Attorney General Robert McCallum sent a memorandum to all U.S. Attorneys and department heads in October 2005 instructing each of them to adopt “a written waiver review process for your district or component.” U.S. Attorneys are now developing such written policies.
Won’t such written policies address the ABA’s concerns?
Because the McCallum Memorandum did not establish minimum standards for or require national uniformity regarding waiver demands, and because it did not acknowledge or address the many problems created by government coerced waiver, it is less likely to result in either uniformity or fewer demands than in numerous different policies throughout the country, many of which may impose only token restraints on federal prosecutors.
What role does the U.S. Sentencing Commission have in this debate?
In November 2004 the U.S. Sentencing Commission added language to commentary of Federal Sentencing Guidelines that, like the Justice Department’s policy, authorized and encouraged prosecutors to seek privilege waiver as a condition for cooperation credit. But the Sentencing Commission voted unanimously in April 2006 to reverse itself, after it received extensive written comments and testimony from the ABA; from members of a coalition of business, legal and other organizations; and from numerous former senior Justice Department officials. The comment and testimony expressed the same concerns as are spelled out here. Unless Congress acts to reinstate the language before November 1, 2006, the language will not be added.
What groups are represented in the “coalition?”
The Coalition to Preserve the Attorney-Client Privilege represents a remarkable political and philosophical diversity, demonstrating just how widespread concerns about government policy in this area have become in the business, legal, and public policy communities. Although ABA policy prohibits it from joining coalitions, it has cooperated extensively with the group. Coalition members include the American Chemistry Council, American Civil Liberties Union, Association of Corporate Counsel, Business Civil Liberties, Inc., Business Roundtable, the Financial Services Roundtable, Frontiers of Freedom, National Association of Criminal Defense Lawyers, National Association of Manufacturers, National Defense Industrial Association, Retail Industry Leaders Association, U.S. Chamber of Commerce, and Washington Legal Foundation.
How does Congress relate to these issues – is there a role for the House and Senate judiciary committees?
The ABA and the organizations represented by the coalition, as well as former Department of Justice officials, have testified before committees of both the House and the Senate about their concerns, asking Congress to urge the Department of Justice to revise its policies.
What former Justice Department officials are you talking about? Who are they?
On September 5, 2006, a group of 10 prominent former senior Justice Department officials from both parties—including three former Attorneys General, three former Deputy Attorneys General, and four former Solicitors General—submitted a letter to Attorney General Gonzales expressing their opposition to the privilege waiver provisions of the Thompson Memorandum. The letter is available here: http://www.abanet.org/media/docs/ag_sept52006.pdf
Why should the public care about protecting corporations’ confidential communications with lawyers, especially after egregious examples of corporate crime such as Enron?
The ABA agrees that all criminals should be subject to prosecution and punishment, in accordance with due process and preservation of constitutional protections. But a basic tenet of our Constitutional system is that people cannot be forced to incriminate themselves. The courts have ruled that organizations are entitled to the same attorney client privilege as are individuals.
The ABA, coalition members and the former Justice Department officials are asking only that corporations retain the same privileges accorded to individuals and recognized by the courts as corporate rights. Corporate leadership threatened with indictment of the company can be pressured into surrendering legal rights even when no wrongdoing has taken place, to avoid harm to stock values, business relationships and public trust. When the rights of corporations are infringed, the impact on society at-large can be enormous. Corporate value is diminished and investors lose money. Investors include such entities as pension plans serving retired people who worked their entire lives, and pensions are put at risk. Employees lose jobs, and their families are put at risk. In 2006 the Supreme Court of the United States overturned the conviction of Arthur Andersen, but that was too late to save the jobs of 28,000 employees.
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