DOJ Policy on Privilege Waivers Disappoints Defense Bar
Washington, DC (December 13, 2006) -- The National Association of Criminal Defense Lawyers, a leading member of the Coalition to Protect the Attorney Client Privilege, appreciates the deliberation that went into the Justice Department’s new policy guidelines on corporate investigations (the McNulty Memorandum) issued today. The National Association of Criminal Defense Lawyers is the nation’s largest voluntary bar organization dedicated to the defense of individuals and organizations accused of criminal misconduct.
After careful consideration, NACDL President Martin S. Pinales, made the following statement:
“As lawyers, we are ethically bound to represent the best interests of our clients. The rules of professional responsibility compel us to reject or work to change government policies that interfere with the attorney-client relationship.
“The McNulty Memorandum still falls short of protecting the attorney-client privilege, and the related work product doctrine, which derives from it. While formal requests for waiver of this important privilege – the oldest privilege at common law – must be approved by the Deputy Attorney General’s office or the head of the Criminal Division, requests for waivers can be implied without any approval or oversight. The fact that the new DOJ policy continues to reward companies that waive privilege suggests that the business of investigating companies will be business as usual.
“We also commend DOJ for elimination of payment or reimbursement of legal expenses as a factor determining whether or not a company should be criminally charged. However, the McNulty memo does not eliminate other troubling provisions of the Thompson Memorandum, such as valid joint defense agreements.
“Just as old as the attorney-client privilege is the principle of innocent until proven guilty. NACDL believes DOJ should recognize that a level playing field is better for companies, shareholders and the public, than policies which breed coercion, distrust and disdain for the rule of law.”