ABA work to stem 'culture of waiver' of attorney-client privilege in corporate probes bears fruit

"The U.S. Sentencing Commission advanced the cause of justice and of corporate governance in the public interest," said ABA President Michael S. Greco in a statement after the commission voted unanimously to rescind a 2004 amendment to sentencing guidelines dealing with attorney client privilege waiver.

The commission voted April 5 to rescind the policy that authorized and encouraged prosecutors to require corporations and other business entities to waive the privilege and work product doctrine as a condition of receiving credit for cooperating in government investigations. Its decision is effective November 1, 2006, unless Congress directs otherwise.

Greco cited broad societal interests served by the privilege, and urged the U.S. Department of Justice to follow the Sentencing Commission's lead and review its own policy of forcing corporate waivers in investigations of suspected corporate wrongdoing.

"The unanimous decision of the Sentencing Commission is not only correct, it is good for America and its citizens, and our democracy," said Greco.

The commission's action responds to concerns expressed not only by the ABA, but also by the National Association of Criminal Defense Lawyers, the Association of Corporate Counsel, the American Civil Liberties Union and the U.S. Chamber of Commerce, among others.

The ABA Task Force on Attorney Client Privilege has cooperated with those organizations urging the commission, the Department of Justice and Rep. Howard Coble, chairman of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, to stem what they describe as a "culture of waiver" that compels client organizations under government investigation to waive their attorney-client privilege and work product protection of documents in an effort to demonstrate cooperation with investigators.

Some 75 percent of corporate counsels believe a "culture of waiver" has developed in governmental agencies, according to a survey conducted by the ABA, the Association of Corporate Counsel and the National Association of Criminal Defense Lawyers.

See also the interview with Bill Ide, chair of the ABA Task Force, in this issue.

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