ABA urges support for attorney-client
privilege legislation

A recent letter from the ABA urged members of the Senate Judiciary Committee to support legislation introduced earlier this year by Sen. Arlen Specter. That legislation, the “Attorney-Client Privilege Protection Act of 2007,” would bar the Justice Department and other federal agencies from pressuring companies to waive their attorney-client privilege or to take unfair punitive actions against their employees as conditions for receiving cooperation credit.

As ABA President Karen Mathis noted in the June 4 letter, the Justice Department outlined its standards for granting cooperation credit – and hence, leniency – to companies and other organizations during government investigations in the 1999 "Holder Memorandum."  The policy then was modified by the 2003 "Thompson Memorandum" and again, most recently, by the 2006 "McNulty Memorandum." 

"Although the Justice Department reluctantly issued new cooperation standards on December 12, 2006, in the form of the McNulty Memorandum," wrote Mathis, "the new policy falls far short of what is needed to prevent further erosion of fundamental attorney-client privilege, work product and employee legal protections."  The McNulty Memorandum was issued after a September 2006 hearing by the Senate Judiciary Committee on the Justice Department's cooperation standards and the effect these standards have on the right to counsel. 

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During the hearing, at which the ABA testified, Sen. Specter and Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, expressed serious concerns about the department's policies relative to attorney-client privilege and urged it to reverse these policies or face possible legislative action.

Explaining the association's opposition to the McNulty Memorandum, Mathis said, "Instead of eliminating the improper practice of forcing companies and other entities to waive in return for cooperation credit, the McNulty Memorandum still allows prosecutors to demand waiver after receiving high level department approval ...(and) gives companies credit if they 'voluntarily' waive without being asked."  Therefore, the memorandum "continues to lead to the routine compelled waiver of attorney-client privilege and work product protections," noted Mathis.  

Her letter also points out that the policy actually harms, rather than enhances, corporate compliance with the law by discouraging company personnel from consulting company lawyers further impeding the lawyers' ability to conduct internal investigations or to counsel their clients on how best to meet legal requirements.  The new policy also continues to erode employees' legal rights by denying cooperation credit to companies that choose to help their employees with their legal defenses or decline to fire them for exercising their Fifth Amendment rights against self-incrimination.

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