Privilege Under Attack
The attorney-client privilege, which protects confidential communications between client and lawyer, is a bedrock principle of the American justice system. The privilege is now under attack by the federal government. It is time for the profession to respond to this reckless threat.
Recent federal policies encouraging prosecutors to coerce corporations and other organizations to waive their attorney-client and work product protections to qualify for leniency in charging and sentencing decisions are both misguided and destructive. They discourage clients from communicating with and confiding in their counsel, and they obstruct counsel’s ability to advise their clients to comply with laws and regulations designed to protect all of us. If current governmental efforts to erode the privilege in the corporate context are successful, other federal agencies may seek waivers in other contexts. I therefore urge all lawyers to join the ABA’s efforts in defending the privilege.
After the Justice Department’s adoption of aggressive waiver policies in 1999 and 2003, prosecutors now routinely pressure corporations and other organizations to waive privilege as a condition for receiving credit for “cooperating” during investigations. The U.S. Sentencing Commission exacerbated the problem in November 2004 by adding language to the U.S. Sentencing Guidelines authorizing and encouraging prosecutors to seek waivers.
The ABA is working to protect the privilege in a number of ways. The ABA Task Force on Attorney-Client Privilege crafted new ABA policy, adopted by our House of Delegates last August, strongly supporting the privilege and opposing government policies that weaken it.
The task force has gathered evidence through public hearings about the harmful effects of privilege waiver on organizations and their employees. Witnesses have testified that the ability of counsel to advise clients on how best to comply with the law has been greatly compromised; that internal investigations are hindered by diminishing written records, which is a direct result of clients’ legitimate fear that documentation will be divulged to the government; and that employees face dismissal unless they agree to the demands of their companies coerced by prosecutors that they waive their own rights in order to demonstrate the company’s cooperation in an investigation.
The efforts of the ABA and a diverse coalition of legal and business groups, including the U.S. Chamber of Commerce and the American Civil Liberties Union, have led the government to reconsider some of the ill advised policies promoting coerced waiver of the privilege.
In January, the Sentencing Commission requested public comment on the possible deletion or amendment of privilege-waiver language in the sentencing guidelines. The ABA and the coalition urged the commission to insert new language clarifying that waiver of attorney client privilege and work product protections should not be a factor in determining cooperation.
Congressional leaders have joined the ABA in expressing support for the privilege. In March, the ABA submitted testimony urging a House Judiciary Committee panel, as part of its oversight responsibilities, to encourage the Justice Department to change its privilege-waiver policies and the commission to revise the sentencing guidelines to align with ABA recommendations.
Our profession must firmly oppose the government’s invidious assault on the attorney-client privilege. The ABA calls on all state and local bar associations to help preserve the privilege as a non negotiable principle of our justice system. I urge all lawyers to support the ABA’s efforts; join bar committees; and contact local U.S. attorneys, members of Congress, and the Sentencing Commission. They should also let their clients know they are fighting to protect clients’ right to zealous and fully informed legal representation. The government’s policies, if left unchecked, will lead to an even greater danger. The marginalizing and diminishing of the lawyer’s role as counselor and advocate, as well as interference with the traditional confidential relationship between lawyer and client, will harm not only the American people and the legal profession but, ultimately, our democracy.
We will take all necessary steps to protect the attorney-client privilege.