News Release

Defense Lawyers Praise Attorney-Client Privilege Bill

Washington, DC (December 7, 2006) – The National Association of Criminal Defense Lawyers (NACDL), a leading member organization of the Coalition to Protect the Attorney-Client Privilege congratulates Sen. Arlen Specter (R-PA) for introducing the Attorney-Client Privilege Protection Act of 2006 (ACPPA). NACDL considered it an honor when Sen. Specter first announced this important legislation Sept. 14 at the association’s 2006 White Collar Crime Conference. (See The Champion, Dec. 2006 at 8, 55.)

“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 and communications to the government and third parties,” NACDL President Martin S. Pinales explained. “DOJ's high-handed practice of forcing companies at gunpoint to abrogate attorney-client privilege and sacrifice employees'' ability to speak candidly with company lawyers without fear that their statements will be handed over to the government is as grossly unfair to the corporation and shareholders as it is to the company's employees.”

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.

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 ACPPA would apply to all government lawyers, not just employees of the Department of Justice.

The ACPPA 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, “and we want to thank Sen. Specter for listening to us.”

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.

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NACDL Communications Department

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.