Attorney Client Privilege January 1st, 2008
The American Bar Association is urging Congress to exercise stronger oversight of federal law enforcement and regulatory agencies to stem what it describes as a “culture of waiver” that has weakened the attorney-client privilege in the corporate context, according to statements made to a subcommittee of the House Judiciary Committee.
The ABA contends that almost 75 percent of corporate counsels believe a “culture of waiver” has evolved among governmental agencies – a culture that compels client organizations under government investigation to waive their attorney-client privilege and work product protection of documents to demonstrate cooperation with investigators.
Government waiver policies unfairly harm companies, associations, unions and other entities, and undermine protections for the public, according to the ABA.
The government waiver policies that the ABA addresses include internal policies of the Department of Justice and a 2004 privilege waiver amendment to the Federal Sentencing Guidelines.
These policies “seriously weaken confidential relationships between companies and their lawyers, harming both the companies and the investing public by discouraging businesses from obtaining guidance on how to comply with the law,” the ABA states in the letter.
“Because government waiver demands often require companies to produce records relating to companies’ internal compliance programs – including the results of internal investigations conducted by the companies' lawyers – the policies undermine the ability of companies to detect and flush out malfeasance,” according to the letter.
“Finally, the policies are fundamentally unfair to employees, forcing them to choose between obeying employer requests to cooperate with government investigators to keep their jobs or asserting their individual attorney-client privilege rights when confronted with government investigations,” it says.
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