Attorney/Client Privilege under Attack
By Tammi Franke
A fundamental part of honest and open communications between attorneys and their clients is the attorney/client privilege. This legal principle, which protects confidential communications between lawyers and clients, is one of the foundations of our legal system.
Increasingly, the Department of Justice is attacking the attorney/client privilege by demanding a waiver of the privilege as a part of its investigation into corporate misconduct. The DOJ has routinely viewed a waiver of the privilege as a sign of corporate cooperation. In practice, companies under investigation have no choice but to waive these protections. The threat of being labeled 'uncooperative' poses too great of a risk of indictment to do otherwise.
Corporate lawyers play a key role in helping companies and their officials understand and comply with complex laws and regulations. An open and confidential relationship between company lawyers and board members, business executives, and operating personnel is essential so that lawyers can represent the company effectively and ensure that compliance is maintained. The DOJ policy requiring the waiver of attorney/client privilege discourages company personnel from consulting with their lawyers undermines internal compliance programs and procedures.
In order to stop the erosion of the attorney-client privilege, the American Bar Association recommends that the DOJ modify its policies to (1) prohibit federal prosecutors from demanding companies waive their attorney-client protections during investigations, (2) specify the types of factual, non-privileged information that prosecutors may request from companies during investigations as a sign of cooperation, and (3) clarify that any voluntary decision by a company to waive the attorney-client privilege will not be considered when assessing whether the company provided effective cooperation.
The American Bar Association, the Association of Corporate Counsel, and ten former high-ranking Department of Justice officials (including Dick Thornburgh, Kenneth Starr and Seth Waxman) have taken strong positions against the DOJ waiver policy. Several business associations, including the US Chamber of Commerce, the National Association of Manufacturers and the Business Roundtable, are also actively seeking a change in the U.S. government's policy. There have been several hearings in Congress to date on the issue with strong support for modification of the DOJ policy.
Despite letters, task forces, and hearings, the DOJ has refused to change its policy. We encourage all of our clients to discuss this issue with your Congressional representatives and demand greater oversight on the DOJ and its waiver policy. It is unfair for the government to add complex operating regulations to the U.S. business environment and then, through departmental policy, undermine the attorney-client relationship, which is one significant way of ensuring compliance with those same regulations.
