Posted Dec 17, 2009 11:50 pm CST
Applauding the introduction of a bill in the House of Representatives yesterday that would restrict federal agencies from pressuring organizations and their employees to waive legal protections when they are under investigation, the president of the American Bar Association has called for swift enactment of the the Attorney-Client Privilege Protection Act Of 2009
Federal agency policies that virtually compel the disclosure of attorney-client communications or attorney work product or make it difficult or impossible for corporations to provide a legal defense to their employees threaten workers’ constitutional rights and discourage voluntary compliance with the law, says ABA President Carolyn B. Lamm in a written statement today.
Coercing disclosure undermines the nation’s adversarial system of justice “and can unfairly threaten the very survival of organizations, including even the largest, most robust corporations,” she writes. “In addition, government policies that pressure companies to refuse to provide employees with legal assistance while investigations are pending, or to fire them for asserting their Fifth Amendment rights, weaken the constitutional presumption of innocence and undermine principles of sound corporate governance.”
Such tactics, Lamm says, hurt not only employees and investors but all of society. While the U.S. Department of Justice has backtracked from an earlier, more aggressive position on privilege waivers and the like, that does not resolve the issue among other federal agencies that still follow practices similar to those the DOJ has stepped away from, she notes.
She urged prompt passage of H.R. 4326, which was introduced yesterday by U.S. Rep. Bobby Scott, D-Va.. Both Democrats and Republicans on the House Judiciary Committee are serving as co-sponsors.
Related earlier coverage:
ABAJournal.com (2008): “McNulty Memo Changes Not Enough to Protect Privilege, ABA Task Force Chair Says”
Federal Evidence Review: “Attorney-Client Privilege Protection Act of 2009 Is Introduced In the Senate (S. 445)”