Legislation Still Needed to Protect Privileges, Right to Counsel
DOJ Agrees: Attorney-Client Privilege Is Good For Business
Washington, DC (August 28, 2008) -- The National Association of Criminal Defense Lawyers (NACDL), a leading member of the Coalition to Preserve the Attorney Client-Privilege, appreciates the Justice Department’s latest policy recognizing the attorney-client privilege. It is, however, “only a policy – not binding on the Department or U.S. Attorneys in the field, and subject to revision or rescission by the attorney general at any time, for any reason, or for no reason at all,” NACDL President John Wesley Hall said today.
The revised policy instructs U.S. Attorneys and line prosecutors not to treat the attorney-client and work product privileges or payment of corporate employees’ attorneys’ fees as obstructions of justice. Likewise, it discourages prosecutors from coercing waivers of the privileges as positive criteria of cooperation and compliance with official investigations.
“This is not just an important victory for the corporate citizen, but for every citizen in America,” Hall, a federal practitioner in Little Rock, Ark., said. “A public step back in the direction of respect for rights by law enforcement can be a good thing for the whole country.
“It does look great on paper, but there really ought to be a law.”
The need for clear guidance from Congress was underscored today by a federal appeals court decision condemning the Justice Department’s practice of punishing companies that pay attorneys’ fees for employees under investigation. In United States v. Stein, the U.S. Court of Appeals for the Second Circuit affirmed a federal judge’s ruling that the government deprived the defendants of their Sixth Amendment right to counsel by coercing their employer into place conditions on the advancement of legal fees, to cap the fees and ultimately end them.
Such a law has been in the works for over a year, he explained. The House of Representatives unanimously passed the Attorney-Client Privilege Protection Act last year. Similar legislation (S.3217) is stalled in the Senate, however.
Besides ensuring that the Department will abide by its own words, legislation is needed because other federal agencies with enforcement powers, such as the Securities Exchange Commission and the IRS also routinely request privilege waivers during official investigations. A federal law would ensure that DOJ’s “policy” would apply to all federal investigations, helping ensure corporate cooperation is sincere and voluntary, and not coerced by power of a prosecutor’s office or a regulatory agency.
The bills are supported by a uniquely broad group of legal, business and civil liberties organizations. The Coalition to Preserve the Attorney-Client Privilege’s members 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.
Noting that the only opposition to enforcing the new policy through legislation has come from the Department of Justice and virtually no one else, Hall observed, “Bipartisan support in Congress for a privilege protection law is as diverse as the Coalition itself,” noting that the Senate sponsors include Joseph Biden (D-DE), Elizabeth Dole (R-NC), Lindsey Graham (R-SC) and Hall’s own senator, Mark Pryor (D-AR). “The diversity and strength of the Coalition speaks volumes to the scope and the depth of this administration’s departure from commonly held notions of fairness and justice in America.”