And They're Off
The ABA’s governmental affairs office is gearing up for a particularly busy year. After all, things are never more hectic in Washington, D.C., than when a new Congress and a new president come to town at the same time.
The GAO, which guides the ABA’s advocacy efforts before Congress, the executive branch and other entities in the federal government, started working with members of President Barack Obama’s transition team shortly after he was elected on Nov. 4.
And even before that, ABA President H. Thomas Wells Jr. and GAO Director Thomas M. Susman drafted a memo identifying key issues on which the new president could take immediate action using executive powers. The GAO also coordinated the preparation of position papers that conveyed to the Obama transition team ABA recommendations on major issues facing the U.S. justice system.
Those recommendations are the result of a process that begins when an ABA entity or affiliated organization—division, section, committee, commission or task force within the ABA; state, local or territorial bar association; or another legal group—develops findings on an issue relating to the justice system. The entity may use those findings as the basis for a recommendation to the House of Delegates, the ABA’s 555-member policy-making body.
Once the House—which meets at ABA midyear and annual meetings—adopts a policy, the GAO crafts strategies for lobbying Congress and the executive branch. The GAO emphasizes a short list of priorities adopted each year by the ABA Board of Governors after a survey of bar leaders.
PRESERVING THE PRIVILEGE
An example of ABA success on a priority issue is the progress that was made during the 110th Congress to ensure protection of the attorney-client privilege.
The ABA opposes policies and practices adopted in recent years by many federal entities that pressure companies and other organizations to waive their attorney-client privilege, and work product and legal protections for employees as a condition for receiving full cooperation credit during investigations. The most troubling waiver policies were adopted by the Justice Department, where five different sets of charging guidelines were issued over the past 10 years, and the Securities and Exchange Commission, which issued similar guidelines.
The ABA Section of Antitrust Law brought the first policy recommendation on this issue to the House in 2004. That same year, the ABA created a Task Force on the Attorney-Client Privilege, which developed additional policy recommendations to the House and has worked closely with a broad coalition of business and legal groups, as well as a growing number of state and local bars, to reverse the government’s privilege waiver policies.
The combined efforts of the ABA, the coalition and a bipartisan group of congressional leaders and former Justice Department officials led to the House passing a bill to protect the attorney-client privilege. As a similar Senate bill gained momentum, the Justice Department in August issued new waiver guidelines supported by the ABA. The U.S. Sentencing Commission and the U.S. Commodity Futures Trading Commission also reversed their waiver policies, and the General Services Administration, the Defense Department and NASA issued a final government contractor ethics rule containing specific protections for the privilege and for work product.
Another success was the addition to the Federal Rules of Evidence of new Rule 502, which provides substantial protections against waiver during federal court litigation and in dealings with federal agencies.
While applauding recent progress, Wells—a partner at Maynard Cooper & Gale in Birmingham, Ala.—underscores the need for a comprehensive approach to protecting the privilege. Otherwise, he says, the widespread “culture of waiver” will continue to “seriously undermine both the confidential attorney-client relationship and basic employee rights in the corporate community.”
This column is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government.
Rhonda McMillion is editor of Washington Letter, an ABA Governmental Affairs Office Publication.
