Attorney-Client Privilege

McNulty Memo Changes Not Enough to Protect Privilege, ABA Task Force Chair Says

The chairman of an ABA task force says legislation is still needed to protect the attorney-client privilege, despite a pledge by the Justice Department that it will change its policy to bar privilege waiver requests in corporate investigations.

R. William Ide III, chair of the ABA Task Force on Attorney-Client Privilege, supports legislation that would bar all federal agencies from pressuring companies to waive the attorney-client privilege and work-product protections. The revised bill, the Attorney-Client Privilege Protection Act, was introduced by Sen. Arlen Specter, R-Pa., on June 27.

Among the entities that allow privilege-waiver requests are the Securities and Exchange Commission and the Environmental Protection Agency. The bill would affect them as well as the Justice Department.

“The problem is much broader than the Department of Justice,” Ide told “It’s a pervasive practice by agencies throughout the federal government that would not be bound by anything the department does.”

Deputy Attorney General Mark Filip outlined the proposed changes in a letter (PDF posted by the Wall Street Journal). Filip says the proposal would bar federal prosecutors from pressuring companies to waive the privilege and instead would measure cooperation by the disclosure of relevant facts and evidence. Other proposed changes would prohibit prosecutors from considering whether a company is paying the legal fees of its employees or participating in joint defense agreements with them.

The Justice Department changes would revise the so-called McNulty memo, written by Paul McNulty, a former deputy attorney general. The McNulty memo allowed prosecutors to prod companies to waive attorney-client privilege in corporate investigations as long as higher ups at the DOJ first give their approval.

According to the ABA Governmental Affairs Office, the new policy will be the fifth in 10 years. Ide notes that it can easily be changed again.

“The Supreme Court of the United States has said an uncertain privilege is no privilege at all,” Ide says. “Some notion there can be a memorandum speaking to the issue creates a cloud of rights.”

Ide says that he would have liked Filip’s letter to contain another message—that the Justice Department supports Specter’s bill.

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