Protecting Attorney-Client Relationships: ABA advocacy helps safeguard the right to effective assistance of counsel
Attorney-client privilege, the lawyer’s ethical duty of confidentiality and the U.S. Constitution’s right to the effective assistance of counsel are bedrock legal principles that encourage clients to speak candidly with their lawyers without fear the information they share will be revealed to others. This enables clients to receive the most competent legal advice possible from fully informed counsel.
To defend these principles and ensure lawyers can continue to represent their clients effectively, the ABA actively engages with Congress and federal agencies based on its long-standing policies passed by its House of Delegates. In the past decade, the association’s advocacy has resulted in significant successes, and the ABA continues to oppose various measures requiring lawyers to disclose protected client information. Recent examples illustrate the breadth of the ABA’s advocacy.
In 2022 and 2024, the ABA helped defeat the Enablers Act, which would have harmed many lawyers and law firms by regulating them as financial institutions under the Bank Secrecy Act and requiring them to report extensive attorney-client privileged and other protected client information to the government.
The ABA also helped to reverse the “persuader” rule adopted by the Labor Department that would have required many lawyers and law firms representing employers to report confidential client information to the government. A federal court struck down the new rule in 2016, and the Labor Department rescinded it two years later based in part on comments submitted by the ABA. The ABA continues to oppose legislative efforts to reinstate the rule, including the Protecting the Right to Organize Act of 2021, which has been reintroduced in each Congress since then.
The ABA’s advocacy produced another important result when U.S. Customs and Border Protection adopted a new policy in 2018 in response to concerns raised by the ABA. The new policy substantially increased protections for privileged and other confidential client information on lawyers’ laptops, cellphones and other electronic devices during border crossings.
More recently, the ABA helped persuade the Federal Energy Regulatory Commission to formally withdraw its proposed “duty of candor” rule, which would have imposed new regulations on many lawyers representing clients before FERC and required them to disclose confidential client information to the agency. The ABA submitted comments to FERC in 2022 urging it not to apply the rule to lawyers representing clients because it would undermine the authority of the state supreme courts and weaken both the attorney-client privilege and the confidential lawyer-client relationship. In November 2025, FERC announced that based on the comments from the ABA and other stakeholders, it was withdrawing the proposal and terminating the rulemaking proceeding.
The ABA is currently working with the Treasury Department in an attempt to persuade the Financial Action Task Force to prepare a favorable mutual evaluation report on the United States’ efforts to combat money laundering. The FATF, the global standard-setting body, is preparing the report to determine whether U.S. laws, regulations and other measures relating to its financial institutions, lawyers and law firms, and other key sectors comply with current FATF standards or whether new U.S. regulations are needed.
In March 2026, ABA representatives met with FATF evaluators at the Treasury Department’s request to explain recent efforts by the U.S. legal profession to combat money laundering. This included the ABA’s adoption and implementation of the 2023 amendments to Rule 1.16 of the ABA Model Rules of Professional Conduct concerning lawyers’ due diligence obligations.
The ABA is also urging Congress to promptly enact the Effective Assistance of Counsel in the Digital Era Act, which would protect the attorney-client privileged status of email communications between federally incarcerated people and their lawyers. Although U.S. mail, phone calls and in-person visits between lawyers and their incarcerated clients are shielded by attorney-client privilege, emails—the only rapid means for clients to reach their lawyers—are not. This is because the Federal Bureau of Prisons requires incarcerated people to waive the privilege in order to access the only available digital network.
The EACDEA would protect the confidentiality of incarcerated people’s email communications and, thus, their Sixth Amendment right to the effective assistance of counsel by ending the BOP’s mandated waiver of the privilege. The bill would require the government to obtain a warrant before accessing incarcerated people’s emails with their lawyers.
Support for the bill’s passage, which has bipartisan co-sponsors in the House and Senate, has been a featured issue at the annual ABA Day in Washington, D.C., fly-in event three times. The ABA continues to lobby for its passage. At the same time, the ABA is seeking a voluntary change to the BOP’s practice by working with the bill’s champions to include report language in the fiscal year 2027 appropriations process reflecting congressional disapproval of the BOP’s waiver requirement.
As Congress and federal agencies continue to adopt or consider policies requiring disclosure of information protected by the attorney-client privilege or the lawyer’s duty of confidentiality, the ABA will remain vigilant in monitoring and opposing such measures. The association will also take all other steps necessary to safeguard the confidentiality protections essential to the effective assistance of counsel and the fair administration of justice.
This report 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 U.S. government. Follow @ABAGrassroots on social media.
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