ABA Urges Congress to Stem ‘Culture of Waiver’ of Attorney-Client Privilege in Probes of Corporations
WASHINGTON, D.C., March 6, 2006 — The American Bar Association urges Congress to exercise stronger oversight of federal law enforcement and regulatory agencies to stem what it describes as a “culture of waiver” that has weakened the attorney-client privilege in the corporate context, in a letter delivered today to a subcommittee of the House Judiciary Committee.
Almost 75 percent of corporate counsels believe a “culture of waiver” has evolved among governmental agencies, a culture that compels client organizations under government investigation to waive their attorney-client privilege and work product protection of documents to demonstrate cooperation with investigators.
Government waiver policies unfairly harm companies, associations, unions and other entities, and undermine protections for the public, according to the letter submitted as written testimony for a hearing tomorrow before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. The letter cites results of a survey of in-house and outside corporate counsels conducted by the ABA, the Association of Corporate Counsel and the National Association of Criminal Defense Lawyers.
The government waiver policies that the ABA addresses include internal policies of the Department of Justice and a 2004 privilege waiver amendment to the Federal Sentencing Guidelines. They seriously weaken confidential relationships between companies and their lawyers, harming both the companies and the investing public by discouraging businesses from obtaining guidance on how to comply with the law. Because government waiver demands often require companies to produce records relating to companies’ internal compliance programs–including the results of internal investigations conducted by the companies’ lawyers–the policies undermine the ability of companies to detect and flush out malfeasance, according to the letter. Finally, the policies are fundamentally unfair to employees, forcing them to choose between obeying employer requests to cooperate with government investigators to keep their jobs or asserting their individual attorney-client privilege rights when confronted with government investigations, it says.
The ABA urged the House Judiciary panel, as part of its oversight responsibilities, to encourage the Justice Department to change its internal privilege waiver policies and the Sentencing Commission to modify the 2004 amendment to the Sentencing Guidelines.
With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.
