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Bar News - October 5, 2007

ABA: Legislation Needed to Prevent Prosecutors from Pressuring Corporations to Waive Legal Protections


The following is drawn from an ABA news release dated Sept. 20, 2007.


The American Bar Association has urged a key Senate panel to approve legislation barring the Department of Justice and other federal agencies from pressuring corporations to waive attorney-client privilege and work product protections, and to take punitive action against the corporation’s own employees, in exchange for leniency in prosecutions.


In a written statement submitted to the Senate Judiciary Committee, the association reiterated its position, previously outlined in its June 2007 letter to committee leaders, opposing government policies that erode those protections and supporting corrective legislation.


“The Justice Department’s McNulty Memorandum and the other similar federal policies are fundamentally flawed and must be reversed,” said the association.  The ABA urged Congress to enact S.186, and its companion bill in the House of Representatives, H.R. 3013, the Attorney Client Privilege Protection Act of 2007.  It said the legislation, which would reverse the Justice Department policy, strikes “the proper balance between effective law enforcement and the preservation of essential attorney-client, work product and employee legal protections.”


The McNulty Memorandum, issued last December to replace the Department’s previous cooperation standards outlined in the Thompson Memorandum, “falls far short of what is needed to prevent further erosion of fundamental attorney-client privilege, work product and employee legal protections,” according to the association.


The waiver provisions contained in the McNulty Memorandum also are causing “profoundly negative consequences,” according to the ABA statement. They continue to lead to routine compelled waiver of the privilege and the work product doctrine, perpetuating the “culture of waiver” created by Thompson Memorandum. They damage the confidential attorney-client relationship between companies and their lawyers, inhibiting company personnel from consulting with lawyers and impeding the ability of the lawyers to counsel compliance with the law.  This results in harm to employees and investors as well as the companies themselves.  By undermining corporate internal compliance programs and procedures, these policies make it more difficult to detect misconduct and respond effectively.


Additionally, the policies undermine constitutional and other legal protections for employees, such as the Sixth Amendment right to effective assistance of counsel and the Fifth Amendment right against self-incrimination, and they are inconsistent with the fundamental legal principle that all prospective defendants are presumed to be innocent.  They allow federal prosecutors to preempt companies from making independent decisions about whether to provide a legal defense to their employees, decisions that ought not to be made by the government, according to the association statement.  And they allow government lawyers to interfere with employees’ access to the information that they need to properly defend themselves.

The association’s testimony is available at

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