ABA testifies on attorney-client privilege

At a September 12 Senate Judiciary Committee hearing on "The Thompson Memorandum's Effect on the Right to Counsel in Corporate Investigations," ABA President Karen J. Mathis urged the committee to "send a strong message to the Department of Justice that the attorney-client privilege and the work product doctrine are fundamental principles of our legal system that must be protected."

Justice Department and other government policies have produced "a number of profoundly negative, if unintended, consequences," said Mathis. If corporations resist what has become routine pressure to waive their privileges, they risk being labeled as uncooperative, she said, and that has an impact not only in sentencing decisions, "but on each company's public image, stock price and credit worthiness."

ABA President Karen Mathis testifies before Senate Judiciary Committee on attorney/client privilege

In her testimony [PDF], Mathis pointed to a letter recently sent to Attorney General Alberto Gonzales in which 10 former senior Justice Department officials, including three former Attorneys General, write that they "agree with the position taken by the American Bar Association, as well as by members of a broad coalition to preserve the attorney-client privilege representing virtually every business and legal organization in this country."

In August, the ABA House of Delegates unanimously adopted policy [PDF] that "opposes government policies, practices and procedures that have the effect of eroding the constitutional and other legal rights of current and former employees, officers, directors or agents" in instances in which prosecutors or other enforcement authorities are "making a determination of whether an organization has been cooperative in the context of a government investigation."

In speaking before the Senate committee, Mathis urged that prosecutors be prohibited from requiring corporations to take punitive action against employees who may be involved in investigations, including refusing to pay their legal expenses, as a condition of leniency.

In addition to the ABA , the committee heard testimony from Deputy Attorney General Paul J. McNulty; former Attorney General Edwin Meese; president and CEO of the U.S. Chamber of Commerce, Thomas J. Donohue; Andrew Weissmann, partner, Jenner & Block; and Mark B. Sheppard, partner, Sprague & Sprague.

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