ABA continues to push for legislation protecting the attorney-client privilege

The ABA continues to fight to reverse U.S. Department of Justice and other federal government agency policies that erode the attorney-client privilege, the work product doctrine and employee legal rights during government investigations.  

In written testimony submitted to the Senate Judiciary Committee in conjunction with a recent hearing on the Justice Department's McNulty Memorandum, the ABA outlined why it is still concerned about the department's new corporate cooperation standards and their harmful effect on these fundamental legal protections.

The McNulty Memorandum – issued last December to replace the department’s previous cooperation standards outlined in the Thompson Memorandum – continues to "pressure companies and other organizations to waive their privileges as a condition for receiving cooperation credit during investigations," stated the ABA. 

The new policy also is detrimental to the constitutional and other legal rights of employees because it, like the Thompson Memorandum, continues to pressure companies "to forgo paying their employees' legal fees during investigations or to take other punitive actions against them long before any guilt has been established."

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Attorney-client privilege "is the bedrock of the client's rights to effective counsel and confidentiality in seeing legal advice," noted the ABA.  It helps companies act legally by allowing and encouraging them to seek counsel on how best to comply with the law.  Further, it helps facilitate self-investigation into past behavior. 

In order to protect the privilege and employees' Sixth and Fifth Amendment rights, the ABA encourages Congress to enact legislation such as S. 186 and H.R. 3013, sponsored by Sen. Arlen Specter and Rep. Robert Scott, respectively, which would reverse the harmful government waiver policies.

The ABA's concerns are consistent with those expressed to the Senate Judiciary Committee on July 30 by a group of nine former senior Justice Department officials.  After concluding that "the McNulty Memorandum maintains the fundamental flaws of the prior regime," the former officials endorsed the pending legislation. 

In its testimony, the ABA noted that the July letter "reflects the growing consensus emerging in the legal and business communities – and among many top former law enforcement officials – that a legislative remedy is needed to reverse the growing 'culture of waiver' caused by the McNulty Memorandum and the other similar federal policies." 

The nine officials who signed that July letter comprise a bipartisan group of former attorneys general, deputy attorneys general and solicitors general including Edwin Meese, Dick Thornburgh, Stuart Gerson, Carol Dinkins, Jamie Gorelick, Walter Dellinger, Theodore Olson, Ken Starr and Seth Waxman.

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