Washington, DC (July 12, 2007) – The National Association of Criminal Defense Lawyers (NACDL), a member organization of the Coalition to Preserve the Attorney-Client Privilege, fully supports the Attorney-Client Privilege Protection Act of 2007 introduced today in the U.S. House of Representatives. The attorney-client privilege – the oldest privilege under common law – exists to protect the public in civil and criminal matters by ensuring frank and honest communications between client and lawyer.
The Attorney-Client Privilege Protection Act is intended to make perfectly clear that U.S. government employees are prohibited from directly or indirectly pressuring organizations into waiving attorney-client privilege or work-product protections or pressuring companies into taking adverse actions against employees in the hope of gaining favorable treatment in a government investigation.
“Effective compliance programs require that companies be able to conduct their own internal investigations without fear that they could be compelled to disclose privileged information to the government and third parties,” NACDL President Martin S. Pinales explained. “DOJ's high-handed practice of using the threat of prosecution to force companies to abandon the privilege undermines the truth-seeking process. It is unfair to everyone involved -- the corporation, shareholders, and employees alike. Corporations, from the CEO to the secretarial pool, need frank communications to assure that they can comply with the law without fear of running afoul of it.”
A consequence of the Justice Department’s arrogance in corporate investigations has been adoption of these unfair tactics by federal regulatory agencies, such as the Securities and Exchange Commission and the Commodities Futures Trading Commission. The law would apply to all government lawyers, not just employees of the Department of Justice.
At a hearing before the Senate Judiciary Committee last September, Deputy Attorney General Paul McNulty informed the committee that the Department of Justice was considering revising the “Thompson Memorandum,” which directs federal prosecutors to weigh whether a company will agree to not pay employees attorneys fee and waive the attorney client privilege when deciding whether charges will be filed against the corporation. Since the mere indictment of a company can be the effective equivalent of the corporate “death penalty” in the marketplace, companies have been coerced by federal prosecutors into surrendering important constitutional rights.
Not satisfied with McNulty’s vague promises, Sen. Arlen Specter introduced a privilege protection bill in the Senate in December. In response, McNulty almost immediately issued his own “McNulty Memorandum” which, as the memo itself said, was an attempt to recognize the concern “that our practices may be discouraging full and candid communications between corporate employees and legal counsel.” The McNulty Memo has been widely criticized as, in essence, rearranging the deck chairs on the Titanic, by experts as diverse as Williams & Connolly partner Richard Cooper and former Enron Task Force Director Andrew Weissmann, necessitating the current bills in both houses. (Sen. Specter reintroduced his legislation on January 4, the first day of the current Congress.)
Like its companion bill in the Senate, the House bill would prohibit government lawyers from forcing organizations into:
- Disclosing information protected by attorney-client privilege or work product doctrine;
- Refusing to contribute to the legal defense of an employee;
- Refusing to enter into a joint defense strategy with an employee;
- Refusing to share relevant information with an employee; and
- Terminating or disciplining an employee.
The bill protects only valid assertions of rights and privileges in the face of government pressure. It does not affect independent business decisions.
“This broad coalition of business and legal groups supporting this legislation speaks for itself,” Pinales said.
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.
Coalition members include the Association of Corporate Counsel, the American Chemistry Council, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the National Association of Manufacturers and the U.S. Chamber of Commerce.
For more information on saving the attorney-client and work-product privileges, visit NACDL's Attorney-Client Privilege Web Page at: https://www.nacdl.org/criminaldefense.aspx?id=9901
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.