ABA urges Attorney General to modify attorney-client privilege waiver policy

The ABA is encouraging the Justice Department to stop the increasingly common practice of federal prosecutors requiring organizations to waive their attorney-client privilege and work product protections as a condition for receiving "cooperation credit" during investigations.

In a May 2 letter [PDF] from ABA President Michael Greco to Attorney General Alberto Gonzales, Greco addressed the importance of members of organizations and businesses being able to speak candidly with their lawyers with the knowledge that those discussions will remain private. Greco wrote, "As you know, the attorney-client privilege enables both individual and organizational clients to communicate with their lawyers in confidence, and it encourages clients to seek out and obtain guidance in how to conform their conduct to the law."

The ABA noted in the letter that problems with the waiver policy were exacerbated by an October 2005 Justice Department directive instructing each of the 93 U.S. Attorneys to adopt a written waiver review process. This will result in "numerous different waiver policies throughout the country," predicted Greco.

A diverse group of national organizations, ranging from the U.S. Chamber of Commerce to the American Civil Liberties Union, have urged the Justice Department to reverse its privilege waiver policy.

In related developments, the U.S. Sentencing Commission voted in April to rescind its policy authorizing and encouraging prosecutors to require corporations to waive their attorney-client privilege and constitutional protections in order to receive "credit" for "cooperating" in government investigations.

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