Attorney-client privilege and the new Justice Department guidelines

Last month Deputy Attorney General Mark R. Filip announced revisions to the U.S. Department of Justice policy on federal investigation and prosecution of corporate crimes. The new guidelines prohibit prosecutors from forcing companies and their employees to waive fundamental protections during investigations. Further, the guidelines bar prosecutors from penalizing companies that pay the legal fees of employees under investigation.

The new guidelines replace the McNulty Memorandum, which Congress and other lawmakers had criticized for not providing sufficient protection to individuals and companies accused of corporate wrong-doing.

The American Bar Association has vigorously opposed policies of the Department of Justice and other federal agencies that weaken employees’ fundamental legal rights by taking punitive actions against them before guilt is established.

Following Filip’s remarks, ABA President H. Thomas Wells Jr. applauded the announcement, but said that more is required to ensure that the rights of companies and their employees are protected and are not at the whim of individual government officials. “Comprehensive legislation is the only way to make the Department’s reforms permanent, give them the force of law, and apply them to all federal agencies,” said Wells.

"Unlike legislation, guidelines can provide no certainty that critical attorney-client privilege, work product and employee constitutional rights will be protected in the future." Wells continued, "These bedrock legal rights are sacrosanct and must not be dependent on the personal leanings of each new deputy attorney general."

The ABA supports bipartisan legislation such as S.3217 and H.R.3013, the Attorney-Client Privilege Protection Act.

In addition, Wells pointed out that the policy change at the Department of Justice does nothing to change policies at other federal agencies. "While the ABA supports and appreciates the department's new policy, that policy cannot, standing alone, reverse the widespread 'culture of waiver' created by all these federal policies – a culture that is seriously undermining both the confidential attorney-client relationship and basic employee rights in the corporate community."

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