ABA enlisting state and local bars in attorney/client privilege fight

The ABA, which in recent months has been fighting to preserve the attorney-client privilege and work product doctrine and protect them from various federal governmental policies and practices that could weaken them, is stepping up its efforts by enlisting state and local bar associations to get involved in the process.

At its Annual Meeting in Chicago in August 2005, the ABA unanimously adopted policy reaffirming support for the attorney/client privilege and work product doctrine and opposing government policies that threaten to erode these fundamental protections. The association, through its Task Force on Attorney-Client Privilege, has also been working with a broad and diverse coalition of legal and business groups in an effort to persuade the Sentencing Commission to remove language from the Sentencing Guidelines that 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, and to insert new language stating that waiver of attorney-client and work product protections should not be a factor in determining cooperation.

In a Jan. 31 letter [PDF], ABA President Michael Greco asked state and local bars around the country to form local committees to educate themselves on the current threats to the attorney/client privilege and work product doctrine and coordinate their efforts with the ABA Task Force. In addition, the letter recommends that bars contact their local U.S. Attorneys, who are in the process of adopting local privilege waiver review procedures, and urge them to adopt procedures that do not allow for any direct or indirect waivers of the privilege. Finally, the ABA is asking that local bar leaders submit their own comments to the U.S. Sentencing Commission before the March 28 deadline, commending the Commission on its decision to reconsider the 2004 privilege waiver amendment to the sentencing guidelines and encouraging it to add language to the guidelines stating that privilege waiver should not be a factor in determining cooperation.

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© 2006 American Bar Association