COVID-19 Update: This event is cancelled.

"Turning the Tables on the Government"

LOCATION: Fairmont Miramar Hotel & Bungalows, Santa Monica, CA
DATES: June 17-19, 2020

The integrity of the criminal justice system relies on the guarantees made to the actors operating within it. For the accused, the guarantee of fair process includes not only the right to put on a defense, but to put on a complete defense. The U.S. Supreme Court recognized the importance of this guarantee over 50 years ago, in Brady v. Maryland, when it declared that failure to disclose favorable information violates the constitution when that information is material. This guarantee, however, is frequently unmet. [Released November 2014]

NACDL’s White Collar Crime Policy Department is on the front lines combating new and unnecessary criminal laws and pushing for meaningful criminal justice reform. NACDL white collar advocacy focuses primarily on the problems of:

• Overcriminalization,
• Vicarious corporate criminal liability,
• Disproportionate and insufficiently flexible sentencing.

In support of this effort, NACDL serves as a leader in a politically diverse coalition of bar, non-profit, and business groups who advocate for a sound and just criminal justice system.

The Supreme Court’s decision in Skilling v. United States fundamentally altered the landscape of 18 U.S.C. § 1346 honest services fraud and public corruption prosecutions. Cases and clients at every stage of the criminal adjudication process are affected by the Skilling decision and the uncertain state of law. Meanwhile, the Department of Justice and other organizations are lobbying for a Skilling-fix. NACDL opposes such a fix and any attempts to restore a limitless honest service fraud statute.

The Supreme Court’s decision in Skilling v. United States fundamentally altered the landscape of 18 U.S.C. § 1346 honest services fraud prosecutions. Cases and clients at every stage of the criminal adjudication process are affected by the Skilling decision and the uncertain state of law. Meanwhile, the Department of Justice and other organizations are lobbying for a Skilling-fix. NACDL opposes such a fix and any attempts to restore a limitless honest service fraud statute. This page recounts the Supreme Court's review of the Skilling case.

The attorney-client privilege is fundamental to fairness and balance in our justice system and essential to corporate compliance regimes. Without reliable privilege protections, executives and other employees will be discouraged from asking difficult questions or seeking guidance regarding the most sensitive situations. Available on this page are a variety of reports, scholarship, and surveys on the decline of the Attorney-Client Privilege and Work-Product Doctrine.  

It is our belief that attorney-client communications, and the confidentiality that fosters those communications, are more important than ever, and laudably serve society’s and our legal system’s public policy goals. In response to increasing concerns expressed by in-house counsel and outside criminal defense counsel, coalition members asked their respective constituencies to complete an online survey: “Is the Attorney-Client Privilege Under Attack?" According to the survey, approximately one-third of the survey respondents had personally experienced some kind of privilege erosion.

NACDL past president Gerald Lefcourt's testimony to the ABA Task Force on Attorney-Client Privilege regarding the effects to individuals during corporate investigations when any privilege is waived.

NACDL Statement on Corporate Attorney-Client Privilege, March 2, 2006.

Letter from Former United States Attorneys to Senator Patrick Leahy in Support of Attorney-Client Privilege Protection Act, June 20, 2008.

Letter from House Judiciary Committee Chairman John Conyers and Crime Subcommittee Chairman Bobby Scott to Attorney General Holder Concerning Attorney-Client Privilege and Work-Product Doctrine, December 16, 2009.

American Bar Association letter filed with the U.S. Sentencing Commission on August 15, 2005 in connection with its decision to add the privilege waiver issue to the list of tentative priorities for the 2005-2006 Sentencing Guidelines amendment cycle.

Comments submitted to the U.S. Sentencing Commission by NACDL's informal Coalition on the Privilege Waiver Amendment to the Federal Sentencing Guidelines regarding priorities in the current (2006) amendment cycle.

Comment letter submitted by nine former senior Justice Department officials to the U.S. Sentencing Commission in connection with its recent decision to add the privilege waiver issue to the list of tentative priorities for the 2005-2006 Federal Sentencing Guidelines amendment cycle. Signatories include former Attorneys General Griffin Bell, Ed Meese, and Dick Thornburgh, former Acting Attorney General Stuart Gerson, former Deputy Attorneys General Carol Dinkins and George Terwilliger, and former Solicitors General Ted Olson, Ken Starr, and Seth Waxman.

"We, the undersigned former senior Justice Department officials, write to enlist your support in preserving the attorney-client privilege and work-product doctrine. We believe that current Departmental policies and practices are seriously eroding these protections, and we urge you to take steps to change these policies and stop the practice of federal prosecutors requiring organizations to waive attorney-client privilege and work-product protections as a condition of receiving credit for cooperating during investigations."