Michael S. Greco
President, American Bar Association
Meeting of Boston Bar Association Members
Members of the ABA Regional White Collar Crime Committee and
ABA White Collar Crime Committee Young Lawyers Subcommittee
and Members of the Public
Boston, Massachusetts
February 2, 2006
Thank you for inviting me to say a few words about attorney-client privilege waiver
issues and the work of the ABA Task Force on Attorney-Client Privilege.
I begin with what I believe should be two fairly non-controversial, generally-accepted
assertions, particularly in a room full of lawyers –
•
that the protection of communications between client and attorney is a bedrock principle
of the American justice system; and
•
that the attorney-client privilege exists not for the benefit of lawyers, but for the
protection of individual clients and the public interest.
In practice, the privilege permits clients to seek and obtain guidance from their lawyer
about how to conform conduct to the law and facilitates self-investigation of conduct to identify
short-comings and remedy problems.
But this principle now is threatened by 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 to qualify for leniency in both
charging and sentencing decisions
Threats to protected communications between clients and their lawyers present
significant obstacles to effective internal compliance programs in corporations and other
organizations, and they hinder efforts to ensure thorough documentation of compliance with
laws and regulations designed to protect all of us.
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.
That is why the American Bar Association formed the Task Force on Attorney-Client
Privilege in 2004 to examine 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.
I want to acknowledge Stanley Keller of Boston, a member of the ABA Task Force who
is with us tonight, and thank him for his work on this important issue. The ABA Task Force has
held a series of public hearings on the privilege waiver issue and received testimony from
numerous legal, business, and public policy groups. The Task Force also crafted new ABA
policy—adopted unanimously by our House of Delegates last August—supporting the privilege
and opposing government policies that erode the privilege.
The ABA strongly supports the preservation of the attorney-client privilege and opposes
all governmental policies, practices and procedures that have the effect of eroding the privilege.
Unfortunately, the Justice Department’s privilege waiver policy has led many of its
federal prosecutors routinely to pressure companies and other organizations to waive their
privileges as a condition of cooperation during investigations.
Many lawyers complain that their clients have been and are being coerced into waiving
the privilege. We have seen a 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 problem of privilege waiver was further exacerbated in November 2004 when the
U.S. Sentencing Commission added language to the Commentary for Section 8C2.5 of the
Federal Sentencing Guidelines that authorizes and encourages the government to seek waiver
as a condition for cooperation.
The ABA Task Force on Attorney Client Privilege has gathered voluminous evidence of
the harmful effects of the privilege waiver on corporations and other organizations subject to the
revised Sentencing Guidelines.
Much of the testimony gathered by the Task Force strikes similar themes:
•
The ability of in-house and outside counsel to advise individual and corporate clients on
compliance with the law has been greatly compromised;
•
Internal investigations are hindered by a lack of adequate written records – a direct
result of the fear that formerly privileged information will be divulged to the government;
•
Employees may face dismissal unless they agree to the company’s demands, coerced
by the prosecutor, that they waive their own legal rights in order to demonstrate that the
company is fully cooperating in an investigation.
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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, and that is all of us. The harm caused by these misguided
policies is felt throughout our economy. Investors and employees are at risk when businesses
face heavy fines or collapse.
Erosion of the attorney-client privilege inadvertently creates an 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 also allows employees to share concerns they may have about their
conduct or that of others in the chain of command.
The latest developments on the 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 will likely result in many different waiver policies across the country
and it will not promote uniformity across jurisdictions. In addition, local policies may impose
only token restraints on the ability of federal prosecutors to demand waiver.
On the positive side, the Sentencing Commission issued proposed amendments on
January 27 that seek public comment on whether the privilege waiver language in the
Guidelines should be deleted or amended. The efforts of the ABA and a diverse group of legal
and business groups – ranging from the U.S. Chamber of Commerce to the American Civil
Liberties Union – helped persuade the Sentencing Commission to reconsider 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 will submit 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 attorney-client 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.
Our profession must unite to meet this challenge. The ABA is calling on all state and
local bar associations throughout the United States to form committees dedicated to protecting
the privilege. I strongly encourage you to review the Sentencing Commission’s proposed
amendments and work within your various organizational capacities to urge deletion of the
privilege waiver language. The deadline for submitting comments on the proposed
amendments is March 28, 2006.
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I also encourage you to contact your local U.S. Attorney—and the Justice Department—
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.
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In the end, erosion of the attorney-client privilege will harm not only the lawyer’s client
but the lawyer’s ability to defend liberty and pursue justice. Any effort to marginalize or diminish
the lawyer’s role in society, or to interfere with the traditional confidential relationship between
lawyer and client, will harm the profession, the American people, and our democratic form of
government.
It is the attorney-client privilege that enables the lawyer to serve best his or her client, by
learning the worst from the client, which the client now willingly communicates because of the
protection of confidentiality. Erosion of the attorney-client privilege is also erosion of the
lawyer’s role in society as respected counselor, advocate and problem solver. And erosion 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 the government.
Perhaps it is that fact that motivates those who want to remove the lawyer from our
historical position as guardian of people’s rights, as protector of freedoms guaranteed by the
Constitution.
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—and to convince the
Sentencing Commission to reverse the 2004 privilege waiver amendment to its Sentencing
Guidelines.
If those efforts are unproductive, the Task Force will return to the ABA House of
Delegates with an additional policy recommendation at our Annual Meeting this August in
Hawaii. And if necessary, this issue, like the ABA’s successful lawsuit against the FTC’s
mystifying 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 join with me and the American Bar Association in vigorously protecting the
attorney-client privilege as a bedrock – and non-negotiable – principle of the American justice
system and our democracy.
Thank you for your kind attention, and for taking an active interest in this important issue,
and thanks again to our hosts and sponsors for this enjoyable reception.
I will be happy to take questions.
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