Report from Governmental Affairs
Matters of Privilege
Provisions in Sentencing Guidelines Undercut Confidentiality, ABA Says
Posted Feb 21, 2006 3:35 AM CDT
By Rhonda McMillion
The ABA is working to preserve the attorney-client privilege and the work-product doctrine, two principles that many fear are being eroded by government actions.
These threats to attorney-client confidentiality stem largely from government regulations introduced after Enron’s collapse. Prosecutors use these regulations to seek materials from corporations that traditionally were protected from disclosure.
In August 2004, the ABA’s policy making House of Delegates voted to oppose an amendment to the federal sentencing guidelines that authorizes the government to require entities to waive their attorney-client and work- product protections to show cooperation with the government in order to qualify for more lenient sentences under the guidelines. The amendment went into effect three months later, but the U.S. Sentencing Commission has included the privilege-waiver amendment on a list of issues to be considered in its current amendment cycle.
Then in August 2005, the House of Delegates unanimously approved a broad policy statement supporting preservation of attorney-client and work-product protections and opposing government actions that erode them.
That policy was recommended to the House by the Task Force on Attorney-Client Privilege, appointed in 2004 by then ABA President Robert J. Grey Jr.
The chair of the ABA Section of Antitrust Law testified before the Sentencing Commission in November. In his testimony, Donald C. Klawiter urged reversal of the privilege-waiver language. Klawiter, who practices in Washington, D.C., expressed the ABA’s view that the amendment, though well-intentioned, has a number of negative consequences.
“By encouraging routine government demands for waiver of attorney-client and work-product protections, the amendment discourages personnel within companies and other organizations from consulting or being completely candid with their lawyers,” Klawiter testified. “This, in turn, seriously impedes the lawyers’ ability to counsel compliance with the law effectively.”
In addition, he said, “the amendment’s actual effect is to make detection of corporate misconduct more difficult by undermining companies’ internal compliance programs and procedures.”
A Growing Coalition
In March 2005, a coalition of nine business, legal and public policy organizations—including the National Association of Manufacturers, American Civil Liberties Union and U.S. Chamber of Commerce—expressed similar concerns in a joint letter urging the Sentencing Commission to reverse or modify the amendment. The group grew to 13 organizations by summer. Nine former senior Justice Department officials, including three former attorneys general, also raised concerns.
The ABA is recommending that the commentary to the guidelines be amended to clarify that the waiver of attorney-client privilege and work-product protection should not be a factor in determining whether a sentencing reduction is warranted.
Congress is expected to take up the privilege-waiver issue, too. At a November conference co-sponsored by the ABA and the coalition, Rep. F. James Sensenbrenner Jr., R-Wis., who chairs the House Judiciary Committee, said sentencing guidelines shouldn’t mandate a privilege waiver for a corporation to get sentencing reductions. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., also said at the conference that he does not believe there ought to be coerced waiver of attorney-client privilege.
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.