U.S. Department of Justice Should Rethink Policy
of Coercing Waiver of Attorney-Client Privilege

By Michael S. Greco, President
American Bar Association

The U.S. Sentencing Commission got it right when it recently voted unanimously to reverse an earlier amendment to the Federal Sentencing Guidelines.  The amendment encouraged prosecutors to erode a bedrock principle of our justice system by requiring corporations and other organizations to waive their attorney-client privilege and work product protections during government investigations in order to qualify for “cooperation credit”—and hence leniency—in charging decisions.

The Department of Justice also has a policy that misguidedly encourages prosecutors to require waiver of privilege.  The American Bar Association is urging the Department to follow the lead of the Sentencing Commission and also reverse its policy.  Justice’s policy is expressed in a memorandum first authored by then-Deputy Attorney General Eric Holder in 1999 and expanded by his successor, Larry Thompson, in 2003.  The Department routinely has informed corporations that to receive full credit for cooperating with the government, they must waive their attorney-client and work product protections and give prosecutors all confidential communications between the company and its lawyers, along with documents containing legal impressions and theories formed by the lawyer. 
 
As the Wall Street Journal noted in its April 6, 2006 editorial, “The Thompson memo said that companies under investigation are expected to surrender any right against self incrimination and cut their accused employees adrift.”  Now, the Department has directed each of 93 U.S. Attorneys around the country to develop local written procedures for when and how they will authorize their prosecutors to seek privilege waivers as a condition of cooperation credit.
 
The American Bar Association believes the Thompson memo and the subsequent directive to U.S. Attorneys are misguided and an affront to the centuries-old principle embodied in the attorney-client privilege—that society benefits when clients and their lawyers communicate fully and frankly, and lawyers are able to counsel their clients on how to comply with the law.  Justice’s policy is also an affront to the Bill of Rights, particularly the Fifth Amendment.

Fear among corporate leaders that they will be pressured to waive their privilege and turn over confidential information is chilling communication between them and their lawyers, and greatly reducing usual and important record-keeping that aids both defense and prosecution of crimes.  The Department’s policy discourages corporate leaders from consulting their lawyers, thereby impeding the lawyers’ ability to counsel compliance with the law effectively.  The policy also impedes prosecution of corporate crime by undermining important internal corporate compliance programs and procedures designed to detect and remedy misconduct quickly.  Instead of improving legal compliance and advancing enforcement of the law, the policy thwarts law-abiding conduct and harms the companies, the investing public, employees, and consumers.

The invidious “culture of waiver” created by these government policies also leaves corporate employees exposed on two fronts.  If they cooperate with the corporate investigators, they may be forced to waive their Fifth Amendment rights against self-incrimination and risk prosecution.  If they attempt to exercise their constitutional rights, they risk loss of their jobs.  It is fundamentally unfair to force employees into that Hobson's choice.

As U.S. Attorneys work to comply with the new Justice Department directive and implement new local waiver procedures, we urge bar associations and their members to participate in the process.  Just as the ABA has been joined in this battle by national allies such as the U.S. Chamber of Commerce, the American Civil Liberties Union, the Association of Corporate Counsel, the National Association of Manufacturers, and the National Association of Criminal Defense Lawyers, we urge state and local bar associations to partner with other local organizations in communicating with their respective U.S. Attorneys.  The strong collaboration among and great concern expressed by such diverse interest groups helped persuade the Sentencing Commission to reexamine the privilege waiver language in the Sentencing Guidelines, and may help persuade the Justice Department to rethink its waiver policy as well.

The government has an obligation to uphold the Constitution, as well as fight crime.   Erosion of the attorney-client privilege, so fundamental to our system of justice and constitutional democracy, is the wrong approach.  It must be stopped.

For questions or to verify this opinion editorial, contact Nancy Cowger Slonim, ABA Division for Media Relations and Communication Services, at 312/988-6132 or e-mail  slonimn@staff.abanet.org.