Statement Re: U.S. Sentencing Commission Vote Rescinding 2004 Privilege Waiver Amendment
April 6, 2006 — The U.S. Sentencing Commission advanced the cause of justice and of corporate governance in the public interest on April 5, 2006, when it voted unanimously to rescind its policy authorizing and encouraging prosecutors to require corporations and other business entities to waive the attorney¬-client privilege and constitutional protections in order to receive “credit” for “cooperating” in government investigations.
The attorney-client privilege is a bedrock of our democracy that is grounded in a constitutional right to effective assistance of counsel, and in the centuries¬-old principle that society benefits when there is full and frank discussion between lawyers and their clients. In the corporate context, just as with individual clients, such frank communication enables lawyers to counsel their clients how best to comply with the law. In the corporate setting, guidance in compliance with the law benefits investors in business, current and past employees, those who contract with a corporation, and consumers who rely on corporate leadership for quality controls, institutional integrity and responsible policies.
The U.S. Sentencing Commission’s action responds to shared concerns of the American Bar Association and other groups including such a diverse list as the U.S. Chamber of Commerce, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the National Association of Manufacturers, the American Chemistry Council and the Association of Corporate Counsel. The range of viewpoints represented demonstrates how fundamental the attorney-client privilege is to our society, and the shared concern about the government’s recent policies to diminish it.
The American Bar Association urges the U.S. Department of Justice to protect the same broad societal interests that support the Sentencing Commission’s decision, by reviewing its own policy of forcing corporate waiver of attorney-client privilege in investigations of suspected corporate wrongdoing. The unanimous decision of the Sentencing Commission is not only correct, it is good for America and its citizens, and our democracy.