ABA Task Force on Attorney-Client Privilege

TASK FORCE REPORTS AND RECOMMENDATIONS

TO ABA HOUSE OF DELEGATES ON EMPLOYEE RIGHTS AS ADOPTED, August 2006

TO THE ABA HOUSE OF DELEGATES ON AUDIT ISSUES AS ADOPTED, August 2006

HELP PRESERVE THE ATTORNEY-CLIENT PRIVILEGE

Information for State/Local Bar Leaders

TASK FORCE MISSION STATEMENT

The protection of communications between client and lawyer, as embodied in the attorney–client privilege, has been a bedrock principle of our justice system for hundreds of years. The privilege is designed to permit the full and frank exchange of information as a necessary measure to ensure effective legal representation and protection of civil liberties. It enables the attorney to provide informed and more effective advice to the client in fulfilling the client's legal obligations. From the investing public's standpoint, preserving this aspect of the client-lawyer relationship ensures that the lawyer's advice will be sought by corporate managers on complex or questionable legal matters, thereby giving the lawyer the opportunity to counsel legal compliance more effectively. The attorney–client privilege is not, however, absolute. It has historically been balanced with competing objectives. Striking the right balance, recognizing the importance of the privilege, continues to be a challenge.

The protection of communications between client and lawyer, as embodied in the attorney–client privilege, has been a bedrock principle of our justice system for hundreds of years.

In order to educate policymakers and the general public on the importance of preserving the attorney–client privilege, the American Bar Association is establishing a Task Force on the attorney–client Privilege. The Task Force will examine the purposes behind the privilege and its exceptions, the circumstances in which competing objectives are currently being asserted by governmental agencies and others to override the privilege, and the extent to which the correct balance is being struck between these competing objectives and the important policies underlying the privilege.

Among recent actions of the federal government affecting the privilege that the Task Force should consider are the U.S. Sentencing Commission's proposed amendments to the federal sentencing guidelines for corporations and other entities. These amendments include as a new factor in determining whether the entity has fully cooperated, and hence is entitled to leniency, whether the entity and its employees waive attorney–client privilege and work product protections. In addition, the U.S. Justice Department and the Securities and Exchange Commission, as well as other federal agencies, have also recently adopted policies requiring waiver of the privilege as a condition for cooperation. Moreover, while some federal agencies have entered into confidentiality agreements with the parties providing the agencies with privileged information, their effectiveness in protecting that information from further disclosure is in doubt.

Examining and reporting on these and related issues will enable the American Bar Association and its Task Force to educate policy makers and the public on the importance of maintaining the attorney–client privilege against unreasonable governmental efforts to circumvent its effectiveness. Legislation may be proposed to enhance the effectiveness of the privilege in helping to achieve greater corporate compliance. The Task Force may also submit new policy proposals to the ABA House of Delegates for its consideration.