Attorney-Client Privilege Under Attack?

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Federal prosecutors are trying to convince several current targets to give up attorney-client privilege in exchange for easier treatment. The American Bar Association says the tactic is not fair.

LIANE HANSEN, host:

A six-year federal investigation of one of the biggest class action law firms in the country concluded last week. Government prosecutors indicted the law firm Milberg, Weiss, Bershad & Schulman on fraud, bribery, money laundering and other charges. U.S. Attorneys suggested that they might have gone easier on Milberg, Weiss if it had given prosecutors internal documents.

NPR's Ari Shapiro reports on the latest battle in an ongoing war over attorney-client privilege.

ARI SHAPIRO reporting:

The national controversy over attorney-client privilege centers on a three-year-old Justice Department memo. One crucial paragraph in that memo lists factors that the government should consider when it's deciding whether to indict a company. And the nugget that's caused all of the uproar is this. The prosecutor may consider the corporation's willingness to waive attorney-client and work product protection.

That principle may sound innocuous, obvious even. You give us internal company documents and we may go easier on you. But it's put some legal groups on the warpath. American Bar Association President Michael Greco describes the Justice Department's policy as an assault on the Constitution.

Mr. MICHAEL GRECO (President, American Bar Association): All of us have the right to remain silent, the right not to incriminate ourselves. And so there's an aspect about this coerced waiver policy that implicates the very Bill of Rights.

SHAPIRO: On its face, the policy doesn't sound coercive. Companies aren't required to give up their attorney-client privilege. It's just an option available to them.

Wayne State Law School Professor Peter Henning, though, says that's not how companies see it.

Professor PETER HENNING (Professor, Wayne State Law School): The problem for companies is many of them don't view this as an option, but instead as what is really now a requirement, that in order to avoid a criminal indictment, they have to cooperate.

SHAPIRO: The Justice Department says those companies are exaggerating.

Attorney RONALD TEMPEST (Associate Deputy Attorney General): We simply don't think it is the case that we are routinely seeking waivers.

SHAPIRO: Ronald Tempest is Associate Deputy Attorney General.

Atty. TEMPEST: In fact, we think we work quite hard with experienced attorneys who are representing corporations to find ways to work with them that will both accomplish the purpose of getting necessary information before prosecutors and investigators, and at the same time protecting the privilege.

SHAPIRO: Most daily decisions about investigations and prosecutions are not made at the Justice Department in Washington. At U.S. Attorneys' offices all over the country, prosecutors act more or less independently. And Robert Plotkin, who's a white collar defense lawyer based in Washington, believes that leaves too much room for abuse.

Mr. ROBERT PLOTKIN (Attorney): It enables attorneys in the U.S. Attorney's Office to put a great deal of pressure on companies and to try to force them or coerce them to waive their attorney-client privilege. And I think that's what the real concern is, that there may be attempts to almost extort the waiver of the attorney-client privilege.

SHAPIRO: So what? Why should anyone care whether a company's conversations with its lawyers remain private? Well, according to ABA President Greco, the threat to attorney-client privilege has had a dangerous backlash. He says companies now are putting less in writing than they used to. And they're doing less research into company problems.

Mr. GRECO: People make mistakes. And before these Justice Department policies, good citizen companies would do internal investigations so that they could detect whether they'd gone astray and make corrections. These internal investigations are now not happening because the end product, they fear, will be turned over to the government.

SHAPIRO: Nobody's happy with that result. But Sam Buell, who used to be a federal prosecutor, says you can't just build a barbwire fence around every bit of information that involves an attorney.

Mr. SAM BUELL (Former Federal Prosecutor): These days in corporate America virtually nothing happens without the involvement of a lawyer. And so if you're trying to unravel sort of everything that happened around a particular business transaction, you need to see the lawyer communications as well to determine what was going on.

SHAPIRO: In the case of the Milberg, Weiss lawfirm, U.S. Attorney Debra Wong Yang said the firm's decision not to cooperate did play a role in her decision to indict the company.

Ms. DEBRA WONG YANG (U.S. Attorney): They didn't step up to the plate and sort of acquiesce with some of our requests for documents and things of that nature. And so that made it very difficult for us to conduct that investigation.

SHAPIRO: There's now an effort to reach a middle ground on attorney-client privilege. A House judiciary subcommittee held hearings on the issue earlier this spring. ABA President Greco recently met with the chairman of the Senate Judiciary Committee and he sent a letter to the Attorney General. The Justice Department says it thinks this policy works well, but it's ready to hear from those who disagree.

Ari Shapiro, NPR News, Washington.

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