NACDL

The New DOJ Corporate Charging Policy

The welcome news that the Department of Justice has issued a new corporate charging policy that decouples charging decisions from a waiver of attorney-client privilege is a major breakthrough for the coalition that has spear-headed a reform effort for the past several years.¹ Under the policy, corporations will no longer be denied credit for cooperation if they choose to assert the protections of the attorney-client privilege or the work product doctrine. Equally as important, the Justice Department will stop punishing companies for honoring agreements to provide counsel for their employees. The announcement of the new policy, which came on the same day that the U.S. Court of Appeals for the Second Circuit upheld Judge Lewis Kaplan’s historic decision in United States v. Stein,² vindicates NACDL’s decision to launch a White Collar Crime Project and underscores the importance of building diverse coalitions in furtherance of the Association’s core mission. (See page 10 in this issue of The Champion.)

The revised policy is compelling evidence of NACDL’s capacity to influence public policy at the highest levels. To be sure, the policy does not offer the durability and breadth of protection that NACDL seeks in supporting the proposed Attorney-Client Privilege Protection Act.³ While all indications suggest that the policy represents a genuine good faith effort to respond to the concerns of the legal community, some commentators remain skeptical and concerned at ambiguity that undercuts the stated intent of the policy. It will take legislation to ensure that there is no backsliding at the Department of Justice in this or future administrations, and importantly, to require that other regulatory agencies with prosecutorial or civil enforcement authority comply with the policy. For this reason, NACDL remains committed to a permanent, legislative solution.
The Coalition

Indeed, it seems clear that growing bipartisan congressional support for remedial legislation to protect the attorney-client privilege against abusive prosecutorial tactics provided the impetus for DOJ to revise its protocols. NACDL’s efforts were guided skillfully by Stephanie Martz, senior director of our White Collar Crime Project. But Stephanie did not act alone. In addition to strong staff support under Kyle O’Dowd’s leadership, the White Collar Crime Committee played a pivotal role throughout the long struggle by providing keen analysis and insightful advice, and by garnering broad support throughout the profession and beyond. But a critical key to the success was a remarkable collaborative effort by the Coalition to Preserve the Attorney-Client Privilege. The members of the coalition include NACDL, the American Chemistry Council, American Civil Liberties Union, Association of Corporate Counsel, Business Civil Liberties Inc., Business Roundtable, the Financial Services Roundtable, Frontiers of Freedom, National Association of Manufacturers, Retail Industry Leaders Association, and the U.S. Chamber of Commerce.

This remarkable coalition must endure, not just to champion the attorney-client privilege against erosion in the corporate charging arena, but also in other contexts in which the privilege is now at risk.

New Threats to the Attorney-Client Privilege

U. S. Customs and Border Protection (CBP) has disclosed an initiative, purportedly in furtherance of national security, that permits warrantless and suspicionless searches of all books, papers, computers, disks, hard drives, and electronic or digital storage devices in the possession of any person crossing a U.S. border (the Policy).⁴ These searches are authorized “absent individualized suspicion” and the material may be retained and taken to “an off-site location” and held indefinitely. This sweeping Policy, which codifies a practice that has been upheld by the Fourth and Ninth Circuits,⁵ essentially requires any person, including lawfully admitted visitors and U.S. citizens, to submit to the electronic equivalent of a strip search as the price of entering or departing the United States.⁶ 

However troubling this may be for lay persons, consider the ramifications for lawyers and their agents, particularly those who are traveling pursuant to their representation of a client. It is virtually impossible for lawyers to shield records, work product, and confidential communications from government review. The Policy obliquely notes: “Occasionally an individual claims that the attorney-client privilege prevents the search of his or her information at the border. Although legal materials are not necessarily exempt from a border search, they may be subject to special handling procedures.”⁷ 

And just what are those special handling procedures? The Policy does not say. It merely provides that if a law enforcement officer suspects that the contents of a document may constitute evidence of a crime “or otherwise pertain to a determination within the jurisdiction of CBP,” the officer must seek advice from government counsel.⁸ And what if the officer does not suspect that the document meets these criteria and is merely asserting the authority to conduct a search without individualized suspicion? And what about electronic data? Does the limiting reference to “correspondence, court documents and other legal documents” pertain to electronic or digitized replicas of those documents? Are an attorney’s electronic notes of a conversation with a client subject to inspection? And what about work product? Nothing in the Policy statement addresses these categories of material.

The Policy has profound implications for American lawyers with clients whose representation requires international travel. But it is equally problematic for foreign lawyers whose practice requires them to enter the United States. In a recent article in Canada’s Law Times, a commentator said the U.S. Customs and Border Protection Policy “presents a significant threat to the solicitor-client confidentiality to which Canadians are entitled.” The commentator went on to say that the threat “arises when a Canadian lawyer travels to the United States with his or her laptop computer, cell phone, BlackBerry, flash drive, or any other written or recorded information or client files — even if the lawyer is only on holiday.”⁹ 

Yet another serious threat to the attorney-client privilege emanates from the Department of Defense. In May, the Department of Defense promulgated a policy requiring military defense counsel to consent to warrantless search and seizure of privileged and protected information on their office computers and peripheral devices. According to the Pentagon’s chief information officer, “the U.S. government may inspect and seize data” stored on government computers, and e-mails and data on government computers “are not private, are subject to monitoring, interception and search, and may be disclosed or used for any U.S. government-authorized purpose.”¹⁰ In essence, users of military computers “consent” to surveillance each time they log on to a computer.

This policy is either a direct assault on the attorney-client privilege or represents a breathtaking indifference to it. NACDL’s Military Affairs Committee under the leadership of co-chairs Jack B. Zimmerman (U. S. Marine Corps, Col. Ret.), of the Houston firm Zimmerman, Lavine, Zimmerman & Sampson PC, and Donald G. Rehkopf Jr. (U.S. Air Force Reserves, Lt. Col. Ret.), of the Rochester, N.Y., firm Brenna and Brenna, is leading NACDL efforts to roll back the policy. On May 30th NACDL’s Executive Committee adopted a resolution calling upon the secretary of defense to rescind the directive and take steps to prohibit interception and seizure of attorney-client privileged information and attorney work product. The policy undermines the ability of thousands of military counsel to effectively and ethically represent the hundreds of thousands of uniformed men and women at every rank who serve America. These attorneys, who are subject to the same ethical constraints as civilian attorneys, should not be forced to sacrifice their obligation to preserve client confidences as a precondition to the use of government equipment.

Zimmerman and Rehkopf, together with a small group of NACDL leaders with expertise in technology, military law and ethics, are spearheading an effort to craft a proposal that can accommodate the government’s legitimate security concerns while protecting the sanctity of the privilege.

These new incursions on the privilege serve as a reminder that the confidentiality upon which the relationship between lawyer and client hinges is at risk. NACDL and its coalition partners must be willing to commit the resources necessary to defend the sanctity of the privilege wherever and whenever it is at risk. The recent success in the corporate charging context is an important reminder that in the ceaseless struggle to champion liberty, there is no substitute for tenacity and no alternative to coalition-building.

Notes

1. U.S. Attorneys’ Manual, 9-28.000 et seq.; http://www.usdoj.gov/opa/documents/corp-charging-guidelines.pdf; Press Release, NACDL, DOJ Agrees: Attorney-Client Privilege Is Good for Business (Aug. 28, 2008), available at http://www.nacdl.org/public.nsf/newsreleases/2008mn20?OpenDocument.
2. United States v. Stein, No 07-3042-cr, 2008 WL 3982104 (2d Cir. Aug. 28, 2008).
3. S. 3217, 110th Cong. (2007); H.R. 3013, 110th Cong. (2007).
4. U.S. Dep’t. of Homeland Security, U.S. Custom and Border Protection, “Policy Regarding Border Search of Information,” issued July 16, 2008. A copy of the policy is available at http://www.cbp.gov/linkhandler/cgov/travel/admissibility/search_authority.ctt/search_authority.pdf.
5. United States v. Ickes, 393 F.3d 501 (4th Cir. 2005); United States v. Arnold, 523 F.3d 941, amended and reh’g & reh’g en banc denied, 533 F.3d 1003 (9th Cir. 2008).
6. “In the course of a border search, and absent individualized suspicion, officers can review and analyze the information transported by any individual attempting to enter, re-enter, depart, pass through or reside in the United States. …” Policy, Para. B.
7. Policy, Para. E (3).
8. “If an officer suspects that the contents of such a document may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the officer must seek advice from the associate/assistant chief counsel or the appropriate U.S. Attorney’s Office before conducting a search of the document.” Policy, Para. E (3).
9. Bob Aaron, New U.S. Policy a Matter of Considerable Concern, Law Times, Aug. 18, 2008.
10. William H. McMichael, Rule May Endanger Attorney-Client Privilege, Air Force Times, June 3, 2008; Policy on Use of Department of Defense (DoD) Information Systems — Standard Consent Banner and User Agreement, Department of Defense, May 9, 2008. A copy is available at http://www.nacdl.org/public.nsf/whitecollar/waiver_attachments/$FILE/DoD.pdf.