Q&A with Bill Ide, former ABA president and current chair of the ABA Task Force on Attorney-Client Privilege

Bill Ide

YourABA recently sat down with Bill Ide, chair of the ABA Task Force on Attorney-Client Privilege, to hear his thoughts on the issue and to discuss the ABA's efforts to regain appropriate balance. Since the interview, the U.S. Sentencing Commission voted to rescind its policy authorizing and encouraging prosecutors to require corporations to waive the attorney-client privilege and constitutional protections in order to receive "credit" for "cooperating" in government investigations. (See accompanying article in this issue.)

What specifically is the threat to attorney client privilege and why is the government pursuing this course?

What we've discovered since ENRON, the corporate frauds, and frankly since 9/11, is that the enforcement community is focusing so narrowly on their concerns that they are failing to take into account the broader implications to the justice system of the policies they've adopted, which are now setting a culture where enforcers are routinely asking for waiver of the work product doctrine and attorney-client privilege.

We're very concerned about that. We've seen it at the federal level, state level, it's spreading to the auditing world, and it's creating a culture that misses the critical balance of the advisory system, where the client can come to the lawyer and speak in confidence and feel comfortable that the confidence will be maintained.

Should only corporate lawyers be concerned about the potential erosion of the attorney-client privilege?

Our justice system is such a delicate system. It's all about trust and a culture of respect for certain prerogatives. And since Shakespeare wrote the famous phrase, "Let's kill all the lawyers," which really meant that the lawyers were protecting the public interest. There's always been this deep concern that every individual should have the right to a lawyer, and it was recognized early in common law for that to be effective there has to be confidentiality. That's the core base of having the right to counsel.

If that base is eroded in any one area, there's a danger that it'll spread to all areas. You have to have consistency of principle in a system or everyone will find reason to make another exception.

Where do you think this will lead?

Well, I am heartened. Frankly, what this is is an education process.

Lawyers within the enforcement community, within government, are causing this problem; but they're people with good heart and good faith. So I think if there's education and an expansion of the discussion of the issues, that, over time, we can readjust to the proper balance.

Judges have jealously monitored the privilege and the proper balance that must be brought to it. On the one hand it's designed to ensure confidentiality, but on the other it suppresses truth. The courts have molded the right balance over centuries to assure that each consideration is properly protected.

If the protection of court oversight is removed, the proper balance cannot be assured. The enforcement community is unilaterally deciding the balance upstream from the court system, thus giving government the unilateral right to decide whether or not people must waive the privilege.

So we're seeking to educate the bar, clients and government. And we're seeing state bars and more and more organizations getting involved in this. The Chamber of Commerce, other business groups, ACLU and client-based groups are all seeing the need to get involved. If you get the education process going, get the dialogue going, we will hopefully – and I think we will – have the balance readjusted to provide that the client can be cooperative without waiving the privilege.

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So there can be a balance?

Absolutely. That's what the courts do.

Judges do it all the time. They find the right balance. It's the fact that judges aren't on the scene that's creating the problems.

What is happening in Congress on the issue, if anything?

One of the areas where this has arisen is due to the U.S. federal sentencing guidelines language suggesting that, for corporations to be deemed cooperative, they should be willing to waive the attorney-client privilege. We have objected and the House of Representatives held hearings on the questions as to whether the United States Sentencing Guidelines Commission would reverse this language. Former U.S. Attorneys and former Attorneys General spoke to the need of eliminating waiver of the privilege from the cooperation guidelines to assure proper balance. Congress has been very helpful in saying that this is an issue where we must have balance in order for proper justice.

What can individual lawyers do to assist in preventing the further loss of privilege, and to begin to swing the pendulum the other way?

This is all about education, and getting this on the radar screen with our citizenry. Every lawyer should learn what the issues are, and then speak out. They can speak out as individuals, they can speak out through their local bar associations, they can speak out through other organizations. That'll make a difference. It's all about grassroots activation.

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Are there other areas where we see this trend?

Up to this point, what I've spoken to is what is mainly going on in the enforcement community against corporations.

But we're also looking at the employees of corporations, and what we're concerned about there is the pressure being put on employers to help the enforcement community, which raises threats to the constitutional rights of their employees. For instance, if an employee is a target of enforcement officials, the investigator from the government would need to give a Miranda warning to the employee before interviewing. Instead of going to the employee, the enforcement officials are going to the corporation saying, you obtain the information for us. The employee would have to respond to such an interview or risk being fired. A Miranda warning would not have to be given. This is happening and it is a violation of the employees' rights.

We are also very concerned about the wiretapping area and eavesdropping on conversations between lawyers and clients. There's this "ends justifies the means" climate right now, one of "we're going to worry about our focus and narrow interests rather than the broad front" that we believe presents a great threat to our time-honored rights as citizens. If we let the fear of the day erode our sense of fundamental fairness, then the perpetrators will have succeeded even if they inflict no physical harm. Losing our sense of democracy is an equally harmful price to pay.

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