ABA President Karen Mathis Urges Senators to Rein-in Justice Department Incursions on Attorney-Client Privilege

WASHINGTON , D.C. , Sept. 12, 2006 – American Bar Association President Karen J. Mathis today urged the Senate Judiciary Committee “to send a strong message to the Department of Justice that the attorney-client privilege and the work product doctrine are fundamental principles of our legal system that must be protected.”

Mathis told committee members that Justice Department directives to federal prosecutors are “improperly undermining those fundamental rights,” in testimony at a hearing on “The Thompson Memorandum’s Effect on the Right to Counsel in Corporate Investigations.”

Justice Department and other government policies have produced “a number of profoundly negative, if unintended, consequences,” said Mathis. If corporations resist what has become routine pressure to waive their privileges, they risk being labeled as uncooperative, with “a profound effect not just on charging and sentencing decisions, but on each company’s public image, stock price and credit worthiness,” she said.

What has become a growing “culture of waiver” discourages corporate leaders from seeking guidance from their lawyers on how to conform company conduct to the law, she said. Additionally, companies need the assurance of confidentiality to facilitate “self‑investigation into past conduct to identify shortcomings and remedy problems as soon as possible, to the benefit of corporate institutions, the investing community and society at-large.”

Mathis urged the committee to encourage the Justice Department to modify a departmental memorandum that directs federal prosecutors in many cases to require corporate waivers of attorney-client privilege and work product protections as a condition for receiving credit for cooperation during investigations. She also urged that prosecutors be prohibited from requiring corporations to take punitive action against employees who may be involved in investigations, including refusing to pay their legal expenses, as a condition of leniency. She cited a recent federal district court ruling that such demands are constitutionally suspect.

Mathis noted a “remarkable letter” to Attorney General Alberto Gonzales signed Sept. 5 by 10 former senior Justice Department officials, including three former attorneys general, “the very people who ran the Justice Department a few short years ago.” The letter said the officials “agree with the position taken by the American Bar Association, as well as by the members of a broad coalition to preserve the attorney‑client privilege representing virtually every business and legal organization in this country.”

“The fact that these individuals previously served as the nation’s top law enforcement officials – and were able to convict wrongdoers without demanding the wholesale production of privilege materials – makes their comments even more credible,” she said.

Mathis noted the ABA had written a similar letter to Gonzales in May, and said the association and the coalition were disappointed when a July 18 Justice Department response “simply reasserted the Department’s existing policy of coerced waiver.”

The Justice Department’s privilege waiver policy is set forth in the so-called “Thompson Memorandum,” a 2003 directive from the then-Deputy Attorney General Larry Thompson to federal prosecutors instructing them to consider certain factors in determining whether corporations and other organizations should receive cooperation credit—and hence leniency—during investigations. Among the factors cited in the memorandum are the organizations’ willingness to waive attorney-client privilege and work product protections, and to not provide legal counsel or other assistance to employees during investigations. Although the U.S. Sentencing Commission also added language to the Federal Sentencing Guidelines in 2004 that recognized privilege waiver as a permissible factor in determining cooperation, the Commission voted in April to remove that language from the Guidelines, and the change will take effect Nov. 1 unless Congress intervenes before then.

With more than 413,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.

Letter to Alberto Gonzales Re: Waiver of the Attorney-Client Privilege and Work-Product Doctrine

ABA Urges Attorney General Gonzales To Modify Attorney-Client Privilege Waiver Policy

CHICAGO, May 5, 2006 — American Bar Association President Michael S. Greco is urging Attorney General Alberto Gonzales to modify a Justice Department policy that the ABA says undermines companies’ efforts to comply with the law.

Greco expressed the ABA’s serious concerns regarding “the increasingly common practice of federal prosecutors requiring organizations to waive their attorney-client and work product protections as a condition for receiving cooperation credit during investigations,” in a May 2 letter to the attorney general.

“Unfortunately, the government’s waiver policies discourage entities both from consulting with their lawyers—thereby impeding the lawyers’ ability to effectively counsel compliance with the law—and conducting internal investigations designed to quickly detect and remedy misconduct,” said Greco. The ABA and a diverse group of other national organizations—ranging from the U.S. Chamber of Commerce to the American Civil Liberties Union—have urged the Justice Department to reverse its privilege waiver policy, just as the U.S. Sentencing Commission voted last month to rescind a similar sentencing policy.

In his letter, Greco also noted that the problems created by the Justice Department’s waiver policy were compounded by an October 2005 Department directive instructing each of the 93 U.S. Attorneys to adopt “a written waiver review process.”

Greco predicted that the Department’s directive will result in “numerous different waiver policies throughout the country,” and that many will impose “only token restraints” on federal prosecutors. A memorandum attached to Greco’s letter suggests policy language that “would remedy the problem of government-coerced waiver while preserving the ability of prosecutors to obtain the important factual information that they need to effectively enforce the law.”

The revisions would “strike the proper balance between effective law enforcement and the preservation of essential attorney-client and work product protections,” said Greco.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.

Statment Re: Remarks of Alberto Gonzales, Attorney General of the United States, Before ABA House of Delegates

August 8, 2005 — The American Bar Association was delighted to welcome the Attorney General of the United States to its Annual Meeting.  Attorney General Gonzales addressed three issues close to the heart of the association.  At this meeting, we are examining the continuing need for the Voting Rights Act, which has been a vital part of American democracy.  We welcome the Attorney General’s invitation to continue the dialogue on two other important issues:  sentencing reform and the Patriot Act.  I was especially pleased to hear the Attorney General say that he shares our concerns about protecting privacy and civil liberties issues as we fight terrorism.  We look forward to working with him in the days ahead on these challenges.