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

ABA Task Force Supports Attorney-Client Privilege as First Line of Defense Against Corporate Corruption

CHICAGO, June 15, 2005 — An American Bar Association task force report released today warns that government policies eroding the corporate attorney-client privilege reduce rather than increase the ability of corporations to cooperate with government.

Pressures on the privilege put public confidence in the corporate community at risk, said ABA President Robert J. Grey Jr., who named the task force last October. The task force report does not constitute association policy. It will be presented to the ABA House of Delegates for consideration as policy in August.

“I created this task force because the privilege is the first line of defense against corporate corruption. It helps corporate management get sound legal guidance to comply with the law and it fosters internal investigations and compliance programs that identify and attack problems,” said Grey.

The report of the ABA Task Force on Attorney-Client Privilege urges support for preserving the privilege and the work-product doctrine, and acknowledges that clients can voluntarily waive either the privilege or the doctrine. It opposes government polices that erode the privilege and doctrine while supporting policies, practices and procedures that recognize their value.

R. William Ide III, task force chair, said current government policies that leave corporations no practical option but to waive the privilege and work product doctrine have the unfortunate effect of chilling the use of counsel by corporations to prevent and detect violations of law.

“The effective assistance of counsel is dependent on confidentiality and allowing lawyers to create their work product in conjunction with providing assistance of counsel. Corporations are entitled to these same rights that our justice system affords to individuals, but overly aggressive government practices that require waiver operate to deny these rights,” said Ide.

The risk is that corporations will respond with greater reluctance to employ counsel or to confide fully in counsel, undermining the public policy goal of encouraging legal compliance through guidance of informed counsel, says the report.

Ide said the task force has initiated discussions with federal agencies about the proper balance of policy concerning voluntary waiver and safeguards against abuse.

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.