ABA President Karen Mathis Calls on Sen. Patrick Leahy to Support Bill Preserving Attorney-Client Privilege
WASHINGTON, D.C., June 4, 2007 — American Bar Association President Karen J. Mathis today urged Senate Judiciary Committee Chairman Patrick Leahy to support S. 186, the so-called Attorney-Client Privilege Protection Act, and overturn Department of Justice and other federal agency policies she said “erode the attorney-client privilege…the work product doctrine…[and] employees’ constitutional and other legal rights.”
In a letter to Leahy, Mathis cited the attorney-client privilege waiver and employee-rights policy outlined in a December 2006 memorandum by Deputy Attorney General Paul J. McNulty to federal prosecutors, saying it “falls far short of what is needed to prevent further erosion of fundamental attorney-client privilege, work product, and employee legal protections,” causing “profoundly negative consequences.”
S. 186, sponsored by Sen. Arlen Specter, would “strike the proper balance between effective law enforcement and the preservation of essential … legal protections,” and the committee should pass the bill as soon as possible, Mathis said.
The new McNulty Memorandum and other previous Justice Department policies pressure companies and other organizations to waive fundamental legal protections during investigations of possible corporate wrongdoing, and erode employees’ Sixth Amendment rights to effective legal counsel and Fifth Amendment rights against self-incrimination, said Mathis.
Although the McNulty Memorandum purports to respond to public outcry over Justice Department policies that it replaced, it “continues to lead to the routine compelled waiver” of corporate legal protections, by allowing prosecutors to demand waivers and rewarding companies that waive their rights without formally being asked, Mathis said. It also undermines internal corporate programs designed to assure compliance with the law by discouraging officers, directors and employees from consulting company lawyers.
“This harms companies, employees, and the investing public as well,” said Mathis.
The Justice Department policy also erodes employee legal rights, Mathis explained, “by pressuring companies to take unfair punitive action against them during investigations … long before any guilt has been shown.” In so doing, it “weakens the presumption of innocence principle, overturns basic corporate governance principles, and violates the Constitution,” Mathis said.
Because of these and other “fundamental flaws” in the Department’s policy, as well as the other similar harmful policies adopted by the Securities and Exchange Commission, the Environmental Protection Agency, and other agencies, Mathis urged Sen. Leahy and other Judiciary Committee members to promptly approve S. 186. The bill, Mathis noted, would bar federal officials from engaging in these practices while preserving their “ability to obtain the non-privileged, factual material they need to punish wrongdoers.”
The letter is accessible at www.abanet.org/poladv/letters/attyclient/2007june04_leahy_l.pdf.
In addition to the ABA, S. 186 also has been endorsed by a large, broad coalition of prominent legal and business groups ranging from the National Association of Criminal Defense Lawyers and the ACLU to the U.S. Chamber of Commerce, the National Association of Manufacturers, and the Association of Corporate Counsel.
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.