FrisbyGuest Commentary

Larson Frisby, American Bar Association*

Editor’s Note: This is the fifth in a series of six guest commentary posts that will address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.

For more than a decade, the American Bar Association (ABA) has worked closely with the Washington Legal Foundation and other prominent business and legal groups to reverse or modify federal agency policies that have been eroding the attorney-client privilege and the work product doctrine. As shown by the WLF’s new chart, “Timeline: Federal Erosion of Business Civil Liberties, great progress has been achieved in preserving these important legal protections, but much still needs to be done.

The attorney-client privilege, which protects confidential communications between a client and a lawyer for the purpose of obtaining legal assistance, is a bedrock legal principle of our free society. It enables both individual and corporate clients to communicate with their lawyers in confidence, which is essential to preserving the client’s fundamental right to effective counsel.

The work product doctrine, which protects materials prepared by or for an attorney in anticipation of litigation, is premised on the same basic policy rationale, namely, that an attorney cannot provide effective legal representation unless certain confidential client-related information is shielded from adversaries. Therefore, both the privilege and the work-product doctrine must be preserved for our adversarial system of justice system to function properly.

Beginning in the late 1990s, many federal government agencies adopted policies that threatened to erode or undermine attorney-client privilege and work-product protections in the corporate context. Each of these policies—including the Justice Department’s 1999 “Holder Memorandum,” 2003 “Thompson Memorandum,” and 2006 “McNulty Memorandum”; the U.S. Sentencing Commission’s 2004 amendments to Section 8C2.5 of the Federal Sentencing Guidelines; the Securities and Exchange Commission’s 2001 “Seaboard Report”; and similar policies adopted by other agencies—pressured companies and other organizations to waive these protections as a condition for receiving full cooperation credit during investigations or other agency benefits.

In 2004, the ABA began to work in close cooperation with a broad and diverse coalition of influential business and legal groups—ranging from the U.S. Chamber of Commerce and the Association of Corporate Counsel to the American Civil Liberties Union and the National Association of Criminal Defense Lawyers—and many state and local bar associations in an effort to raise awareness of these harmful government policies and to craft effective remedies.

The coalition adopted a two-track approach, which included urging each individual agency to reverse or modify its privilege waiver policy, while at the same time working with congressional leaders to develop comprehensive legislation that would prohibit all federal agencies from pressuring companies to waive the privilege during investigations.

In addition, a prominent group of former senior Department of Justice officials—including former Attorneys General, Deputy Attorneys General, and Solicitors General from both political parties—submitted letters to the Sentencing Commission, Justice Department, and Congress urging them to adopt new policies or enact legislation preventing further government-coerced waiver of the privilege.

As a result of these and other efforts, support continued to grow in Congress for comprehensive legislation known as the “Attorney-Client Privilege Protection Act” (ACPPA). H.R. 3013, sponsored by Representatives John Conyers (D-MI), Bobby Scott (D-VA), and Lamar Smith (R-TX), was approved overwhelmingly by the House in November 2007. The Senate companion bills, S. 186 and S. 3217, also generated significant bipartisan support but did not come to a final Senate vote.

Although the 110th Congress did not enact ACPPA, the legislation’s increasing momentum at that time—combined with the growing concerns raised by the coalition, the former DOJ officials, and other stakeholders—helped persuade many key federal agencies to reconsider, and in some cases reverse or modify, their privilege-waiver policies.

Most notably, the Justice Department replaced the McNulty Memorandum in August 2008 with the “Filip Memorandum” and the attached set of revised corporate-charging guidelines. The revised DOJ guidelines stated that while prosecutors may require companies to disclose all relevant facts during investigations in return for cooperation credit, they could no longer require or even ask companies to waive their attorney-client privilege or work-product protections. This new DOJ policy, which was also incorporated into the U.S. Attorneys’ Manual, was a substantial improvement over its previous waiver policy.

The Sentencing Commission, Commodity Futures Trading Commission, General Services Administration/FAR Councils, and Treasury Department’s Office of Foreign Assets Control also adopted similar changes to their privilege-waiver policies. Meanwhile, the SEC adopted more limited reforms through a series of revised Enforcement Manuals that instruct agency staff not to request waiver of the privilege without the prior approval of the Director or Deputy Director.

(For more information on how these and other federal agency privilege waiver polices have changed over time, and for the text of the original and revised agency policies, please see the ABA’s “Federal Agency Policies that Erode the Attorney-Client Privilege” and “Attorney-Client Privilege Materials” webpages.)

While these federal agencies, to their credit, have greatly improved their respective waiver policies to better protect the privilege and work product, other agencies—including the Consumer Financial Protection Bureau, other federal banking agencies, and the Department of Housing and Urban Development—still have policies in place that seek to compel businesses and other entities to disclose information that is privileged. Certain other agencies, such as the SEC and the National Security Agency, have adopted policies that only partially protect the privilege.

By working together, the business and legal communities have made substantial progress in reversing the harmful “culture of waiver” that had developed within many federal agencies. The revised policies adopted by the Justice Department and other key agencies are a clear improvement over the previous policies and have greatly strengthened both the attorney-client privilege and the work product doctrine in the corporate context.

Despite these remarkable achievements, however, the business and legal communities must remain vigilant and do all they can to reverse or modify the other agencies’ harmful policies to ensure that these fundamental legal rights are preserved, both now and in the future.

*Mr. Frisby is the ABA’s Associate Governmental Affairs Director