Michael S. Greco
President, American Bar Association
American College of Trial Lawyers 56th Spring Meeting
Westin Diplomat Hotel
Hollywood, Florida
April 8, 2006
I thank the Fellows of the American College of Trial Lawyers for inviting me to
address this august group
it is a great pleasure to be with so many old friends and
new acquaintances.
The American Bar Association and the American College of Trial Lawyers
have a long history of collaboration on issues of great importance to our profession,
the public, and our country. During the past fifty-five years our members have
provided leadership to both organizations, and a number of distinguished lawyers
have served as president of both. Several who readily come to mind are Robert W.
Meserve of Boston, Whitney North Seymour of New York, Lewis F. Powell, Jr., of
Richmond, and Bernard G. Segal of Philadelphia
great lawyers all. I am confident
that the two associations will continue to collaborate and support each other s efforts
in the years to come.
My subject today is the attorney-client privilege, one of the subjects that was
mentioned as a high priority of mine, and of the American Bar Association, in the
warm introduction just given by my good friend, Gael Mahony, who himself served as
president of the American College in 1983, when we were partners at the former and
great Boston firm of Hill & Barlow. When I joined the firm a decade earlier right out
of law school Gael became mentor, teacher and role model for me -- and over the
years we tried many cases together. Our friendship goes back four decades, and so
it is a special moment for me to be introduced this morning by Gael.
The attorney-client privilege today is under unprecedented assault by the
federal government, and I will address the ABA s vigorous efforts to defend the
privilege, recent developments regarding the privilege, and the task that lies ahead
for our two organizations and our profession to protect a bedrock principle of the
American justice system and our democracy.
Let me begin by going back in time
about fourteen months ago
to the
February 2005 ABA Midyear Meeting in Salt Lake City. The American Bar
Association s Task Force on the Attorney-Client Privilege
2004
appointed in the fall of
was holding the second in a series of hearings to gather information on the
effects of U.S. Department of Justice policies and practices, and changes to the U.S.
Sentencing Guidelines, that authorize and encourage the government to require
organizations to waive the attorney-client privilege in order to qualify for leniency in
both charging and sentencing decisions.
One after another, witnesses at that hearing described the devastating effects
of the federal government s aggressive campaign to coerce waiver of the privilege
from corporations and other organizations subject to the amended U.S. Sentencing
Guidelines. They described the harm done to effective internal compliance programs
and investigations by the diminishment or outright lack of written records
a direct
result of clients legitimate and growing fear that documentation and attorney-client
communications may be divulged to the government. They described the obstacles
that in-house and outside counsel now face in advising clients on how best to comply
with the law based on a full and frank discussion of all potentially relevant compliance
issues. And they described employees facing dismissal unless they agree to the
demands of their companies
coerced by prosecutors
that they waive their own
rights in order to demonstrate the company s cooperation in an investigation.
One witness in particular
American Chemistry Council
James Conrad, Assistant General Counsel for the
summed up the problem succinctly by remarking that,
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When people can't be assured that their communications are protected, they stop
writing things down.
Why do I lead with this example, and why should lawyers
or anyone else
outside the corporate world care about coerced waiver of the privilege?
I do so because I believe that this phenomenon is the perfect representation of
the proverbial camel s nose under the tent, and because it poses such a dangerous
threat not only to corporations but to all persons in America, to our profession, to our
justice system, and ultimately to our democracy. If current governmental efforts to
erode the privilege in the corporate context are successful, other federal agencies no
doubt will seek waivers in other contexts
potentially implicating a far larger group of
clients and lawyers.
It is clear to lawyers, but apparently not yet so to federal regulators and
prosecutors, that absence of protected communications between client and lawyer
compromises effective internal compliance programs, by making clients fearful of
divulging to counsel potentially damaging information. When clients fear that such
information may have to be disclosed to the government, they end up substituting
their legal judgment for that of their counsel
often with disastrous results. And not
only is potentially damaging information not brought to light, but also potentially
exculpatory information.
This invidious attack on the attorney-client privilege also has serious
implications for the greater public
one need not be directly associated with a
corporation or organization that is the target of government investigation to be
concerned about this trend. Erosion of the privilege hinders counsel s efforts to
ensure clients thorough documentation of compliance with laws and regulations that
are designed to protect all of us
from product and workplace safety regulations to
laws designed to protect investors from fraudulent or misleading business practices.
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This is not just a lawyers issue
it is an issue that affects every person with a
stake in our nation s economic health. The harm caused by these misguided federal
regulatory policies is felt throughout the American economy. Investors and
employees are at risk when businesses face heavy fines or collapse. Erosion of the
attorney-client privilege inadvertently creates a perverse incentive to see no evil,
hear no evil and speak no evil. Preserving the privilege has the opposite effect.
The privilege provides a safe haven for leaders who want to conduct business
in accordance with the law by encouraging them to meet with counsel and seek
guidance when difficult legal issues arise. The privilege allows employees to share
concerns they may have about their conduct or that of others in the chain of
command. And the privilege enables corporate leaders, with the advice of fully
informed counsel, to nip problems in the bud before they lead to innocent people
being financially injured or defrauded, and companies facing bankruptcy because a
relatively small problem ballooned into a major crisis, to survive.
In our efforts to defend the attorney-client privilege from attack we must
educate, and continually remind, the American people that the privilege belongs to
them
not to lawyers. The privilege is, of course, essential to enable lawyers to
provide effective and fully-informed representation, but zealous and informed legal
representation is for the benefit of the client
American people
not lawyers
not the lawyer. Ultimately, it is the
who are harmed most when they can no longer rely
upon the confidentiality of communications with counsel, but in a moment I will
address the harm to our profession also flowing from erosion of the attorney-client
privilege.
The American Bar Association believes that current practices of federal
agencies to coerce waiver of the privilege is eroding not only the privilege, but it also
is steadily eroding the time-honored attorney-client relationship that has been a
bedrock of our legal system for centuries.
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So what are we doing about it?
As I mentioned earlier, the ABA Task Force on Attorney-Client Privilege has
been hard at work since 2004 examining three important areas:
the purposes underlying the privilege and its exceptions;
the circumstances in which competing objectives are currently being asserted
by governmental agencies and others to override the privilege; and
the extent to which the correct balance is being struck between these
competing objectives and the important policies underlying the privilege.
The Task Force crafted a report and strong recommendation
adopted
unanimously as ABA policy by our 550-member House of Delegates last August
supporting the privilege and opposing government policies that erode it. The ABA
Task Force and other organizations have documented the dramatic increase in the
number of coerced waivers since the Justice Department s privilege waiver policy
was first established by the Holder Memorandum in 1999
and elaborated upon in
the Thompson Memorandum in 2003.
The ABA Task Force has also been addressing erosion of the privilege caused
by the November 2004 amendments to the U.S. Sentencing Guidelines, which added
language to the Commentary for Section 8C2.5 of the guidelines that authorized and
encouraged the government to seek waiver as a condition for cooperation.
Recent developments on privilege waiver offer some hopeful signs, but also
some continuing sources of concern. Last October, Acting Deputy Attorney General
Robert McCallum sent a directive to all U.S. Attorneys and Department Heads
instructing each of them to adopt a written waiver review process. Unfortunately, this
ad hoc approach will likely result in many different waiver policies across the country
and will not promote needed uniformity across jurisdictions. In addition, local policies
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may impose only token restraints on the ability
and zealousness
of federal
prosecutors to demand waiver.
The efforts of the ABA and a diverse and extraordinary group of legal and
business organizations
ranging from the U.S. Chamber of Commerce to the
American Civil Liberties Union
helped persuade the U.S. Sentencing Commission
to consider amending the privilege waiver language in the Guidelines.
A number of Congressional leaders, including Senate Judiciary Committee
Chairman Arlen Specter and House Judiciary Committee Chairman James
Sensenbrenner have expressed their strong support for the attorney-client privilege
and their concerns about escalating governmental demands for waiver of the
privilege.
The ABA and other organizations several weeks ago submitted comments to
the Sentencing Commission urging that the Guidelines be amended by removing the
privilege waiver language and inserting new language stating that waiver of attorneyclient and work product protections should not be a factor in determining cooperation.
In our view, such an amendment is a necessary step to preserving the confidential
attorney-client relationship and all the many public policy benefits that flow from that
relationship.
I am pleased to inform you that, three days ago, on April 5, 2006, the U.S.
Sentencing Commission unanimously and wisely voted to delete the privilege waiver
provisions from the Sentencing Guidelines. The ABA Task Force now will continue
the ABA s effort to encourage the U.S. Department of Justice to reach a similar
decision.
Our profession must be united in this effort. To that end, last month I wrote to
all bar associations throughout the United States to join the ABA in protecting the
privilege.
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I strongly encourage you and the American College of Trial Lawyers to
continue to exert your influence as distinguished leaders of the bar to roll back the
destructive policies that are endangering the privilege, and continue to work to
defend the privilege from further attacks.
We need to contact all local U.S. Attorneys
and the Department of Justice
and urge them to adopt waiver review procedures that do not permit any requests,
direct or indirect, for waiver of the privilege and work product protection. It is vitally
important that federal regulators and policymakers strike the right balance between
compliance with the law and protection of the public. And it is our responsibility as
lawyers to help those regulators and policymakers get it right.
Threats to the privilege and work product protections posed by U.S.
Department of Justice policy represent just one front in a growing governmental
assault on the independence of the legal profession itself, and on the ability of
lawyers effectively to counsel clients. A wide range of government policies and
practices are now combining
either coincidentally or by design
to attempt to
marginalize and diminish the lawyer s role in society as trusted advisor, counselor,
and defender of rights.
One example is the Federal Trade Commission s attempts to regulate
attorneys under the Gramm-Leach-Bliley Act of 1999. When discussions with the
FTC were unsuccessful, the ABA and the New York State Bar Association
successfully brought suit against the Commission to stop it from attempting,
mystifyingly, to regulate lawyers as financial institutions under Gramm-Leach-Bliley.
The US Court of Appeals for the DC Circuit ruled in the ABA/NYSBA s favor last
December, and the FTC last month declined to appeal the decision to the Supreme
Court of the United States.
The outcome of the Gramm-Leach-Bliley litigation reaffirms that the regulation
of the practice of law is the province of the supreme courts of the several states, and
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that existing ethical rules governing lawyers are more than adequate to protect the
privacy rights and confidential information of lawyers clients. It also reminds all that
on matters affecting the integrity and independence of the legal profession, as on
other subjects of importance to society, the courts are there to check and balance the
powers of the executive and legislative branches of the government.
In other areas the organized bar, to date, has had less success in defending
the independence of the legal profession and the interests of those we represent. A
case in point is the Bankruptcy Reform Act of 2005, aggressively pushed through
Congress by a powerful interest group, and enacted with no opportunity given for
debate or amendments, which contains several provisions that the ABA continues
strongly to oppose.
These provisions require debtors attorneys to:
certify the accuracy of the debtor's bankruptcy schedules of assets and
liabilities, under penalty of harsh sanctions;
certify the debtor s ability to make future payments under reaffirmation
agreements; and
identify themselves, again mystifyingly, not as lawyers or counsel but as
"debt relief agencies" subject to a host of new intrusive regulations that
impinge on the lawyer-client relationship.
These provisions are causing bankruptcy lawyers to hire private investigators
and appraisers to verify information provided by clients, adding substantial cost to
representing a debtor in bankruptcy. Unless these and other related provisions are
repealed
which the ABA is working to do
bankruptcy representation will become
unaffordable for many debtors and essential pro bono services will greatly diminish or
disappear.
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I have been made aware that law firms across the country are reacting to the
new Bankruptcy Code s attorney liability provisions by prohibiting their lawyers from
taking on pro bono bankruptcy cases. The new realities of bankruptcy law are
harmful to the legal profession, but even more so to those who no longer have
access to lawyers to help them escape a crushing and never-ending cycle of debt.
This harm to debtor and counsel
by driving a financial wedge between them,
by creating suspicion between them, and by damaging the attorney-client relationship
that must be based on trust and respect -- may have been the ultimate intent of the
new Bankruptcy Act s proponents. We must continue to oppose these and other
attempts to erode the lawyer s ability to protect the interests of our clients.
As president of the American Bar Association it concerns me
concern all lawyers and all Americans
and it should
that erosion of the attorney-client privilege
harms not only the public and our justice system, but it is also diminishes the lawyer s
primary and time-honored role in society as protector of the people and their
constitutional freedoms and rights.
In the end, erosion of the attorney-client privilege will marginalize the lawyer
and the lawyer s ability to defend liberty and pursue justice. Erosion of the lawyerclient relationship will lead to the diminishment of the lawyer s role in society because
clients will no longer entrust confidences with and seek counsel from their lawyers.
And such diminishment will lead to a less effective, less respected, and greatly
reduced lawyer s role in society not only in particular client matters, but more broadly.
The Founders chose to underscore the lawyer s important role in society as
respected advocate, problem solver and protector of freedom by making the legal
profession the only one, among the many important professions, expressly
mentioned in the U.S. Constitution.
A diminishment of the lawyer s role in society would greatly reduce the
lawyer s ability to protect clients and the American people from the excesses of
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government, and to advocate on a myriad of issues that threaten society and
freedom. Perhaps it is that fact that motivates those who want to remove the lawyer
from our historical and respected position as protector of people s rights and guardian
of freedoms guaranteed by the Constitution. The same interest groups that want to
eliminate an independent legal profession also want to eliminate an independent
judiciary, which the Founders carefully protected by the genius of separation of
powers.
Shakespeare had it right in Henry VI, part 2, when he noted that the surest
way to create chaos and unleash tyranny throughout the land is by killing all the
lawyers. In the 21st Century, it is a different kind of death of lawyers that we are
dealing with, and that we vigorously must oppose with resolve and with every ounce
of our energy.
The ABA Task Force on Attorney-Client Privilege will continue the ABA s
vigorous efforts to preserve the vital attorney-client and work product protections by
trying to persuade the Justice Department to modify its internal policies on privilege
waiver. If it becomes necessary, this important issue, like the ABA s successful
lawsuit against the FTC s effort to regulate lawyers as financial institutions under
the Gramm-Leach-Bliley Act, ultimately may need to be resolved in court.
I ask you to continue to support the American Bar Association s efforts in
vigorously protecting the attorney-client privilege as a bedrock
and non-negotiable
principle of the American justice system and our democracy.
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As our world becomes a little smaller each day, we must also recognize that
we share more common ground with lawyers in other countries than we may have
had even just a few years ago. We are doing more business across national
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boundaries than ever before, and the decisions made by government agencies,
financial institutions, and courts in other countries increasingly impact our work and
the interests of our clients. More foreign lawyers are applying for temporary
admission as foreign legal consultants in the U.S., and we are seeking more
opportunities to practice abroad, as well.
The ABA has an ambitious and growing program to promote the rule of law
and stable legal and judicial systems on five continents. Our rule of law initiatives in
Africa, Asia, Central Europe and Eurasia, and Latin America are advancing the
principle that society must be ruled by law, not by passions of the mob or ambitions
of powerful leaders.
As professionals, we are also called upon to promote the rule of law
throughout the world not only for altruistic but also pragmatic reasons. Transparent
governmental institutions and stable, corruption-free legal systems not only protect
human rights, they also encourage the clients of American lawyers to invest in and
help develop economies around the world
including our own..
For these reasons, among others, during the past eight months I have been
urging foreign and international bar leaders to strengthen their ties with each other in
furtherance of mutually-held goals such as promotion of an independent legal
profession, an independent judiciary that is free of intimidation and influence, and
access to justice for all.
Last November I participated in an extraordinary meeting of some 120
international bar leaders from more than forty nations in Paris, France, that led to
adoption of a Statement of Core Principles of the legal profession that I authored
during the meeting.
The Statement, which is being adopted by bar associations throughout the
world, was unanimously ratified by the ABA House of Delegates when I presented it
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at our 2006 Midyear Meeting in Chicago two months ago. It sets forth in simple and
clear terms, in language devoid of legalese that non-lawyers may comprehend and
personally relate to themselves, the core principles to which the members of the legal
profession throughout the world are committed, in the public s interest.
The Statement of Core Principles of the legal profession provides as follows:
The legal profession throughout the world, in the interest of the public, is
committed to these core principles:
1) An impartial, and independent, judiciary, without which there is no rule
of law.
2) An independent legal profession, without which there is no rule of law or
freedom for the people.
3) Access to justice for all people throughout the world, which is only
possible with an independent legal profession and an impartial, and
independent, judiciary.
And that, these core principles shall not yield to any emergency of the
moment.
The simple theory that underlies the Statement of Core Principles is one that I
have stressed in recent months to bar leaders at several international meetings in an
effort to unify the legal profession: that we must recognize that the legal professions
of the world are not islands, but part of one main, of one continent, to paraphrase the
English poet John Donne. That we are one legal profession throughout the world.
I have said to our international colleagues, and I say to you, that any attack on
the independence of the legal profession in our country is an attack on the legal
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profession in all countries; and that any harm to the people of one country because of
the failure of the rule of law is harm to the people of our country, and to all of
humankind.
All lawyers of the world must stand united, must help each other, to combat
those attacks and to advance a view of the law as an engine of justice and progress
not as a tool to support repression, inequality, or the privileges of the few over the
rights of the many.
United, the legal profession throughout the world will withstand the attacks by
governments and powerful interest groups on the independence of our profession, on
an impartial and independent judiciary, on a legal system that provides access to
justice to all people, and on the rule of law.
I ask you to join me in the important and necessary effort to unify the legal
profession throughout the world to combat these attacks.
I conclude by commending you and the American College of Trial Lawyers for
all that you do to uphold the legal profession s proud traditions of independence and
excellence, for your dedication to protecting the rule of law at home and abroad, and
for your fidelity to the principle of equal justice for all.
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