Model Bar PowerPoint Presentation on Government Coerced Waiver of Attorney-Client Privilege, Work Product, and Employee

1. Model Bar PowerPoint Presentation on Government Coerced Waiver of Attorney-Client Privilege, Work Product, and Employee Legal Protections [updated 8/7/07]

2. Protecting Attorney-Client Privilege, Work Product, and Employee Legal Rights The ______ Bar Seeks Reversal of Harmful Federal Agency Policies

3. Attorney-Client Privilege and Work Product—Bedrocks to Effective Assistance of Counsel • Privilege—has evolved as a judicial doctrine over 500 years to allow clients effective assistance of counsel • Balances suppression of truth with need for clients to have full evaluation of rights and obligations • Critical component to self-regulation that is most effective component of a just society • In Upjohn v. U.S., 449 U.S. 383, 393 (1981)US Sup. Ct. recognized that corporations also entitled to privilege with their attorneys • Work Product—recognized by US Sup. Ct. as an important component to functioning of adversary system

4. The Problem • The _____ Bar, the ABA, and many in legal, business communities are concerned about federal agency policies that erode the attorney-client privilege, the work product doctrine, and employee legal protections in the corporate context.

5. The Problem(continued) • Most troublesome is the DOJ policy. • 2003 “Thompson Memorandum” • 2006 “McNulty Memorandum” • Similar policies adopted by SEC, U.S. Sentencing Commission, HUD, CFTC, EPA, and other agencies.

6. The Problem(continued) • Policies pressure companies to waive privilege in return for cooperation credit during investigations. • Confidential attorney-client relationship is chilled • Company leaders are not talking to lawyers • Internal corporate investigations are discouraged

7. The Problem(continued) • All these policies, except Sentencing Guidelines, also pressure companies to forgo paying employees’ legal fees, fire employees, or take other punitive actions before guilt is shown.

8. The ____ Bar’s Response • The ______ Bar, the ABA, and their allies are pressing the relevant agencies and Congress to reverse these policies, leading to some recent success.

9. The ____ Bar’s Response(continued) • The _____ Bar’s Task Force on Attorney-Client Privilege studies the federal policies, crafts new bar policy, and works with the bar’s leadership to communicate concerns to policymakers. • The _______ Bar is working with the ABA and a broad and diverse coalition of legal and business groups, ranging from U.S. Chamber of Commerce to ACLU, to reverse the federal agency policies.

10. The ____ Bar’s Response(continued) • ABA sent letters to DOJ, Sentencing Commission, SEC, CFTC, and HUD expressing concern over the federal policies, urging specific changes; also sent letter to Congress urging passage of corrective legislation, H.R. 3013 and S. 186. • Similar letters sent by senior former DOJ officials to Sentencing Commission, DOJ, and Congress urging reform; • The ____ Bar also sent letters to Congress urging passage of H.R. 3013 and S. 186. • The ____ Bar, the ABA, and coalition lobby Congress and agencies to reverse these policies through personal meetings, written comments, and testimony.

11. The ____ Bar’s Response(continued) • ABA reaches out to state, local bars: • Sent letters in January and May 2006 and August 2007; • Created special state/local bar resources page on ABA Task Force website; • Sent e-mail poll in March 2007 requesting information and status on bar policies and action

12. Recent Agency Success • Sentencing Commission votes to reverse privilege waiver amendment to Federal Sentencing Guidelines in April 2006, effective November 2006. • CFTC removes privilege waiver language from cooperation standards in March 2007.

13. New DOJ Policy • Justice Department issues new cooperation standards in December 2006 known as the “McNulty Memorandum”: • Continues to allow formal waiver requests if prosecutors first receive high-level DOJ approval; • Continues to encourage routine waiver by rewarding companies for unsolicited, “voluntary” offers to waive; • Bars prosecutors from pressuring companies to forgo paying employees’ legal costs in many—but not all—cases but still forces companies to take other punitive actions against them before guilt is shown

14. Congressional Action • House and Senate Judiciary Committees hold three hearings between March 2006 and March 2007; virtually all members from both parties support the privilege and oppose DOJ policies. • Sen. Arlen Specter (R-PA) introduces legislation, S. 186, on January 4, 2007 that would reverse the harmful DOJ and other federal agency policies. • Reps. Bobby Scott (D-VA), Randy Forbes (R-VA) and others introduce identical House bill, H.R. 3013; House Judiciary Committee approves it on August 1, 2007

15. The Message • DOJ’s new McNulty Memorandum falls far short of what’s needed and further erodes fundamental attorney-client, work product, and employee protections. • DOJ’s policy continues to cause routine compelled waiver of attorney-client privilege and work product protections • Whether direct or indirect, waiver demands are unjustified • Prosecutors only need the facts to enforce the law, not lawyers’ opinions and mental observations

16. The Message(continued) • Policy weakens attorney-client privilege between companies and their lawyers and undermines internal compliance programs, which harms companies, employees, and investing public. • Policy unfairly harms employees by pressuring companies to take unfair punitive action against them during investigations. • Broad coalition—from the U.S. Chamber to the ACLU—also strongly opposes the policy.

17. The ____ Bar’s Request • Write and call U.S. Senators _[name]_ and _[name]__ and urge them to cosponsor and/or support S. 186 other similar legislation. Also encourage them to urge Senate Judiciary Committee Chairman Patrick Leahy (D-VT) to markup a bill ASAP. • Write and call your U.S. Representative and urge them to support and vote for H.R. 3013 when its considered by the full House in September 2007. • Send copies of any letters you send to Senators or Representatives to the ABA (c/o Larson Frisby, frisbyr@staff.abanet.org) so they can follow-up.

18. For More Information: • For general information, visit the ABA Task Force on Attorney-Client Website at: http://www.abanet.org/buslaw/attorneyclient/ or contact Larson Frisby of the ABA Governmental Affairs Office at 202-662-1098 or frisbyr@staff.abanet.org • For model letters to the House and Senate and other useful forms, visit the ABA Task Force’s website and click link for “Information for State/Local Bar Leaders” • For copies of DOJ or other federal agency policies, previous ABA and coalition letters to Congress, and other useful background information, visit the ABA Privilege Waiver Materials webpage at: http://www.abanet.org/poladv/priorities/privilegewaiver/acprivilege.html