Tuesday, August 23, 2011
Posted by D. Daniel Sokol
The NACDL's brief is scholarly and powerful.
It makes two broad points:
a. The Norris case, if left unchallenged, would "turn the attorney-client privilege on its head, and authorize the invasion of one co-client's (the individual's) privilege . . ." NACDL Amicus Brief at 12.
The result will be that corporate antitrust investigations will be hampered -- a result decidedly at odds with the Antitrust Division's mission and enforcement goals (oddly enough): "the [lower court decisions in Norris] renders it impossible, as a practical matter, for outside counsel to competently and ethically represent a corporate faced with a government investigation. . . . . Ethical counsel will of course advise the individual corporate officers of this new rule of law. The officers, in turn, will be reluctant to speak to corporate counsel." NACDL Amicus Brief at 13.
b. The NACDL brief also forcefully takes on the lower court's ruling that defense counsel could somehow become a "conduit" for lies to reach the grand jury (simply in the ordinary course of conducting corporate counsel interviews in antitrust investigations), a ruling that destroys the adversarial system.
"It is impossible to harmonize the Third Circuit's 'conduit' theory with our adversarial system." NACDL Amicus Brief at 20. This has the result of greatly raising the stakes in the circuit split. Id. "From the perspective of outside counsel, the Third Circuit's new rule will inevitably chill the zealous advocacy that it is their duty to provide." NACDL Amicus Brief at 21.