ABA urges U.S. Sentencing Commission to reconsider recent changes to the federal Sentencing Guidelines

In a letter to the U.S. Sentencing Commission on August 15, the ABA said that recent changes to the federal sentencing guidelines have weakened the attorney-client privilege, and instead of improving corporate behavior will make detection of misconduct more difficult.

The guidelines are intended to create incentives for good corporate behavior while increasing penalties for corporations that lack mechanisms for detecting and discouraging employee wrongdoing. The change in the guidelines of most concern to the ABA is a change to the commentary, which authorizes and encourages the government to require organizations to waive their attorney-client privilege and work product protections in order to show “thorough” cooperation and qualify for a reduction in their culpability score and a more lenient sentence.

The unintended effect of this change, the letter points out, is actually to make detection of corporate misconduct more difficult rather than less, by undermining companies’ internal compliance programs and procedures.

The letter also points to an informal bipartisan coalition of business, legal and public policy groups that has expressed similar concerns. That coalition, with members ranging from the U.S. Chamber of Commerce to the American Civil Liberties Union, also filed comments with the commission on August 15, as did a group of nine former officials of the Justice Department — including three former attorneys general — who concluded that the new waiver amendment is “seriously flawed.”

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