Sunday, November 19, 2006

Various State Bars Resisting "Culture of Waiver" of Attorney-Client Privilege

Posted by Alan Childress

Interesting article this morning on law.com called, "State Bars Push Back on Privilege Waivers," by National Law Journal's Sheri Qualters.  It is about various state task forces "convening to counter 'Thompson Memo' waivers" cajoled by DOJ directive, the states using different resistance strategies.  One new such state mulling ethics-rules ways to mute the DOJ policy is Michigan, and its task force chair (Samuel Damren of Detroit's Dykema Gossett) has a nice quote about pushing back the "culture of waiver" such government policies create to "erode" traditional privilege.  One method is to make government attorneys in the state subject to new ethics rules forbidding a demand of corporate waiver as proof of cooperation and innocence: "If the prosecutors and regulators aren't going to Damrenchange the rules, it's not just in their hands, it's in the hands of the bar."  Damren's task force is linked here.  [Damren is shown right and his P number is a relatively-prestigious and forgetfulness-resistant 25522 -- er, change your ATM code today, Damren.]  Several other states likewise are looking at  their ethics rules.

Many other states are imploring the DOJ to change its policy.  It may be listening some, according to a related post today by Ellen Podgor (Stetson) on White Collar Crime Prof Blog, called "Perhaps a Step in the Right Direction."  She links to a thorough Bloomberg News story by Robert Schmidt about what Podgor deems to be welcome but baby steps being considered at DOJ.  And she provides several useful links to background on the DOJ issue and debate. Yet it appears that the "the changes won't be dramatic," reports Schmidt--leaving it in the hands of the states to push back as described by Damren. 

More pressing, I'm off to fight the crowds at ToysRUs for a game system for my son.  What we do for our kids.  Maybe the DOJ should spend more time investigating the phenomenon of "intentional shortage retail frenzy" (ISRF) and less eroding privilege. Oh, my mother-in-law wants that masochistic Elmo too.

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