Erosion of the Attorney-Client Privilege and Work Product Doctrine

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Model Bar PowerPoint Presentation on Government
Coerced Waiver of Attorney-Client Privilege, Work
Product, and Employee Legal Protections updated
8/7/07
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Protecting Attorney-Client Privilege, Work
Product, and Employee Legal Rights

• The ______ Bar Seeks Reversal of Harmful Federal
  Agency Policies

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Attorney-Client Privilege and Work
ProductBedrocks to Effective Assistance of
Counsel

• Privilegehas evolved as a judicial doctrine over
  500 years to allow clients effective assistance
  of counsel
• Balances suppression of truth with need for
  clients to have full evaluation of rights and
  obligations
• Critical component to self-regulation that is
  most effective component of a just society
• In Upjohn v. U.S., 449 U.S. 383, 393 (1981) US
  Sup. Ct. recognized that corporations also
  entitled to privilege with their attorneys
• Work Productrecognized by US Sup. Ct. as an
  important component to functioning of adversary
  system

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The Problem

• The _____ Bar, the ABA, and many in legal,
  business communities are concerned about federal
  agency policies that erode the attorney-client
  privilege, the work product doctrine, and
  employee legal protections in the corporate
  context.

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The Problem(continued)

• Most troublesome is the DOJ policy.
• 2003 Thompson Memorandum
• 2006 McNulty Memorandum
• Similar policies adopted by SEC, U.S. Sentencing
  Commission, HUD, CFTC, EPA, and other agencies.

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The Problem(continued)

• Policies pressure companies to waive privilege in
  return for cooperation credit during
  investigations.
• Confidential attorney-client relationship is
  chilled
• Company leaders are not talking to lawyers
• Internal corporate investigations are discouraged

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The Problem(continued)

• All these policies, except Sentencing Guidelines,
  also pressure companies to forgo paying
  employees legal fees, fire employees, or take
  other punitive actions before guilt is shown.

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The ____ Bars Response

• The ______ Bar, the ABA, and their allies are
  pressing the relevant agencies and Congress to
  reverse these policies, leading to some recent
  success.

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The ____ Bars Response(continued)

• The _____ Bars Task Force on Attorney-Client
  Privilege studies the federal policies, crafts
  new bar policy, and works with the bars
  leadership to communicate concerns to
  policymakers.
• The _______ Bar is working with the ABA and a
  broad and diverse coalition of legal and business
  groups, ranging from U.S. Chamber of Commerce to
  ACLU, to reverse the federal agency policies.

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The ____ Bars Response (continued)

• ABA sent letters to DOJ, Sentencing Commission,
  SEC, CFTC, and HUD expressing concern over the
  federal policies, urging specific changes also
  sent letter to Congress urging passage of
  corrective legislation, H.R. 3013 and S. 186.
• Similar letters sent by senior former DOJ
  officials to Sentencing Commission, DOJ, and
  Congress urging reform
• The ____ Bar also sent letters to Congress urging
  passage of H.R. 3013 and S. 186.
• The ____ Bar, the ABA, and coalition lobby
  Congress and agencies to reverse these policies
  through personal meetings, written comments, and
  testimony.

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The ____ Bars Response (continued)

• ABA reaches out to state, local bars
• Sent letters in January and May 2006 and August
  2007
• Created special state/local bar resources page on
  ABA Task Force website
• Sent e-mail poll in March 2007 requesting
  information and status on bar policies and action

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Recent Agency Success

• Sentencing Commission votes to reverse privilege
  waiver amendment to Federal Sentencing Guidelines
  in April 2006, effective November 2006.
• CFTC removes privilege waiver language from
  cooperation standards in March 2007.

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New DOJ Policy

• Justice Department issues new cooperation
  standards in December 2006 known as the McNulty
  Memorandum
• Continues to allow formal waiver requests if
  prosecutors first receive high-level DOJ
  approval
• Continues to encourage routine waiver by
  rewarding companies for unsolicited, voluntary
  offers to waive
• Bars prosecutors from pressuring companies to
  forgo paying employees legal costs in manybut
  not allcases but still forces companies to take
  other punitive actions against them before guilt
  is shown

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Congressional Action

• House and Senate Judiciary Committees hold three
  hearings between March 2006 and March 2007
  virtually all members from both parties support
  the privilege and oppose DOJ policies.
• Sen. Arlen Specter (R-PA) introduces legislation,
  S. 186, on January 4, 2007 that would reverse the
  harmful DOJ and other federal agency policies.
• Reps. Bobby Scott (D-VA), Randy Forbes (R-VA) and
  others introduce identical House bill, H.R. 3013
  House Judiciary Committee approves it on August
  1, 2007

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The Message

• DOJs new McNulty Memorandum falls far short of
  whats needed and further erodes fundamental
  attorney-client, work product, and employee
  protections.
• DOJs policy continues to cause routine compelled
  waiver of attorney-client privilege and work
  product protections
• Whether direct or indirect, waiver demands are
  unjustified
• Prosecutors only need the facts to enforce the
  law, not lawyers opinions and mental observations

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The Message(continued)

• Policy weakens attorney-client privilege between
  companies and their lawyers and undermines
  internal compliance programs, which harms
  companies, employees, and investing public.
• Policy unfairly harms employees by pressuring
  companies to take unfair punitive action against
  them during investigations.
• Broad coalitionfrom the U.S. Chamber to the
  ACLUalso strongly opposes the policy.

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The ____ Bars Request

• Write and call U.S. Senators _name_ and
  _name__ and urge them to cosponsor and/or
  support S. 186 other similar legislation. Also
  encourage them to urge Senate Judiciary Committee
  Chairman Patrick Leahy (D-VT) to markup a bill
  ASAP.
• Write and call your U.S. Representative and urge
  them to support and vote for H.R. 3013 when its
  considered by the full House in September 2007.
• Send copies of any letters you send to Senators
  or Representatives to the ABA (c/o Larson Frisby,
  frisbyr_at_staff.abanet.org) so they can follow-up.

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For More Information

• For general information, visit the ABA Task Force
  on Attorney-Client Website at http//www.abanet.o
  rg/buslaw/attorneyclient/ or contact Larson
  Frisby of the ABA Governmental Affairs Office at
  202-662-1098 or frisbyr_at_staff.abanet.org
• For model letters to the House and Senate and
  other useful forms, visit the ABA Task Forces
  website and click link for Information for
  State/Local Bar Leaders
• For copies of DOJ or other federal agency
  policies, previous ABA and coalition letters to
  Congress, and other useful background
  information, visit the ABA Privilege Waiver
  Materials webpage at http//www.abanet.org/polad
  v/priorities/privilegewaiver/acprivilege.html