August 12, 2005
ABA Stand on the Attorney-Client Privilege
Posted here is a reference to the ABA resolution regarding the Attorney-Client privilege that was recently passed by the ABA House of Delegates. The resolution itself can be found here. The last paragraph of this resolution is very telling. It states:
"FURTHER RESOLVED, that the American Bar Association opposes the routine practice by government officials of seeking to obtain a waiver of the attorney-client privilege or work product doctrine through the granting or denial of any benefit or advantage." (emphasis added)
This resolution is important because it shows that that the government has acted improperly in continually asking counsel to waive the attorney-client privilege or work product doctrine in conducting criminal investigations that might implicate the corporation. Every corporate counsel and outside counsel representing corporations should have a copy of this resolution in their pocket or purse. When someone in the government asks for this waiver during a criminal investigation, pull out the resolution and show them the impropriety of their actions.
This issue often arises in the corporate setting where the corporation is asked to waive all privileges and give information on individuals within the corporation to the government. Oftentimes in this context, the corporation becomes pitted against the individuals in the corporation, with the government trying to secure evidence that will lead to an indictment.. Having seen the devastation that can be caused by an indictment against a corporation (Arthur Andersen LLP), even when the corporation is later successful in the matter, corporations become overly willing to cooperate and provide the government with anything desired. The benefit or advantage here to the corporation in this cooperation is to avoid the corporation from suffering criminal or civil penalties.
Cooperation is clearly beneficial to resolving criminal matters, but there needs to be limits to what is acceptable in this realm. And when the government crosses the lines in trying to secure that cooperation, the corporation and individuals need to have some leverage in order to respond. The ABA Resolution is the first step in providing a response to the government.
What might be even more beneficial to corporations would be if the ABA would pass a specific ethics rule prohibiting this conduct. ABA ethics rules in the past have been used to counter improper activity on the part of the government. Just look at ABA Model Rule of Professional Conduct Rule 3.8(e) that restricts prosecutors from subpoenaing a lawyer to a "grand jury or other criminal proceeding to present evidence about a past or present client."
If the government does not reconsider its position in light of this ABA Resolution and continues to ask for a waiver as a part of "necessary cooperation" to avoid criminal or civil penalties to the corporation, and by chance a corporate attorney does waive that privilege, this ABA Resolution provides a new line of questioning in a cross-examining that attorney on the witness stand. After questions explaining to the jury what waiver and privilege are, it might include a question like - - "Counsel, do I understand correctly, you agreed to a waiver of this privilege despite the American Bar Association specifically resolving that this was an improper practice being used by the government? . . ."
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