ABA President Karen Mathis Urges Senators to Rein-in Justice Department Incursions on Attorney-Client Privilege
WASHINGTON , D.C. , Sept. 12, 2006 – American Bar Association President Karen J. Mathis today urged the Senate Judiciary Committee “to send a strong message to the Department of Justice that the attorney-client privilege and the work product doctrine are fundamental principles of our legal system that must be protected.”
Mathis told committee members that Justice Department directives to federal prosecutors are “improperly undermining those fundamental rights,” in testimony at a hearing on “The Thompson Memorandum’s Effect on the Right to Counsel in Corporate Investigations.”
Justice Department and other government policies have produced “a number of profoundly negative, if unintended, consequences,” said Mathis. If corporations resist what has become routine pressure to waive their privileges, they risk being labeled as uncooperative, with “a profound effect not just on charging and sentencing decisions, but on each company’s public image, stock price and credit worthiness,” she said.
What has become a growing “culture of waiver” discourages corporate leaders from seeking guidance from their lawyers on how to conform company conduct to the law, she said. Additionally, companies need the assurance of confidentiality to facilitate “self‑investigation into past conduct to identify shortcomings and remedy problems as soon as possible, to the benefit of corporate institutions, the investing community and society at-large.”
Mathis urged the committee to encourage the Justice Department to modify a departmental memorandum that directs federal prosecutors in many cases to require corporate waivers of attorney-client privilege and work product protections as a condition for receiving credit for cooperation during investigations. She also urged that prosecutors be prohibited from requiring corporations to take punitive action against employees who may be involved in investigations, including refusing to pay their legal expenses, as a condition of leniency. She cited a recent federal district court ruling that such demands are constitutionally suspect.
Mathis noted a “remarkable letter” to Attorney General Alberto Gonzales signed Sept. 5 by 10 former senior Justice Department officials, including three former attorneys general, “the very people who ran the Justice Department a few short years ago.” The letter said the officials “agree with the position taken by the American Bar Association, as well as by the members of a broad coalition to preserve the attorney‑client privilege representing virtually every business and legal organization in this country.”
“The fact that these individuals previously served as the nation’s top law enforcement officials – and were able to convict wrongdoers without demanding the wholesale production of privilege materials – makes their comments even more credible,” she said.
Mathis noted the ABA had written a similar letter to Gonzales in May, and said the association and the coalition were disappointed when a July 18 Justice Department response “simply reasserted the Department’s existing policy of coerced waiver.”
The Justice Department’s privilege waiver policy is set forth in the so-called “Thompson Memorandum,” a 2003 directive from the then-Deputy Attorney General Larry Thompson to federal prosecutors instructing them to consider certain factors in determining whether corporations and other organizations should receive cooperation credit—and hence leniency—during investigations. Among the factors cited in the memorandum are the organizations’ willingness to waive attorney-client privilege and work product protections, and to not provide legal counsel or other assistance to employees during investigations. Although the U.S. Sentencing Commission also added language to the Federal Sentencing Guidelines in 2004 that recognized privilege waiver as a permissible factor in determining cooperation, the Commission voted in April to remove that language from the Guidelines, and the change will take effect Nov. 1 unless Congress intervenes before then.
With more than 413,000 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.