Friday, December 1, 2006

Attorney-Client Privilege - The "Revised Holder Memo"

The Heritage Foundation's event of yesterday on "The Future of the Attorney-Client Relationship in White-Collar Prosecutions" included opening remarks by Former Attorney General Ed Meese followed by remarks by two former Deputy Attorney Generals - George J. Terwilliger III and Larry Thompson.  Obviously, the interest of the audience was in what Larry Thompson would say regarding the memo that bears his name.

Meese starting by noting the importance of the attorney-client privilege. He expressed his hope that DOJ would resolve this issue internally to avoid possible legislation.  Terwillinger followed with comments that included his perspective on some of the flaws in the memo. He did not, however, reject a selective waiver approach. Thompson, the final speaker, emphasized the importance of cooperation in investigations. But he also emphasized that the attorney-client privilege is sacrosanct. 

It was clear that the way the memo has been used by DOJ in recent years was not the way Larry Thompson had intended for its use when it was written. The waiver of the privilege was for the very rare case. But the most important comment by Thompson was his recognition that this memo needs revision.

And that revision is likely to be coming soon. As reported in the Washington Post it looks like both DOJ (Deputy AG Paul McNulty) is considering internal modification of the memo and Senator Arlen Specter is considering legislative change to finally end the practice of having corporations waive their attorney-client privilege. 

Legislation is really the best way to proceed here.  DOJ has been told time and again to stop asking or implying a benefit or detriment premised on the waiver of the attorney-client privilege.  The only thing that has happened in response to the outcry, is a minor memo that merely looks for consistency internally in each office.  With 94 offices it means basically no oversight.  The problem with now letting DOJ try to remedy this with an internal policy is that it will not provide the permanent consistency necessary to protect this important common law privilege. More importantly, DOJ guidelines are not enforceable at law. So if they fail to abide by any guideline that they write, it will only be as good as DOJ wants it to be. Additionally, every new Attorney General might revise the possible memo or just ignore it.  Thus, what is happening now in deferred prosecution agreements could happen again, even if a DOJ guideline was instituted.

For a department that strives for consistency at sentencing, it seems odd for them to be advocating for mere adoption of internal guidelines that would not provide consistency when it comes to the application of a basic common law principle.  Senator Spector  is right to move ahead on this one.


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