ACLU Joins Business and Legal Groups on Attorney-Client Privilege Concerns, Says Bedrock American Principle Should Not Be Waived

October 14, 2005 12:00 am

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WASHINGTON -The American Civil Liberties Union today joined prominent business and legal organizations in calling for lawmakers to clarify provisions in the Federal Sentencing Guidelines that encourage corporations and organizations to waive their attorney-client privilege or work-product protections in order to receive leniency in federal criminal cases. The U.S. Chamber of Commerce, the Association of Corporate Counsel, the National Association of Criminal Defense Lawyers and the American Bar Association are among the organizations coordinating their efforts on the issue.

“The right to consult with an attorney freely and without government intrusion is one of the bedrock principles of our legal system,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “Our Constitution ensures due process and yet we see a continued assault on that fundamental right. Attorneys cannot effectively represent their clients if they know that Big Brother is listening. Changes must be made to restore the ability of organizations to have effective legal representation.”

At issue is the government’s interpretation of the U.S. Sentencing Guidelines and how they relate to “organizations,” which includes corporations, unions, non-profit organizations and others. Specifically, changes to the guidelines in November, 2004 permitted and encouraged the government to require organizations to waive attorney-client privilege and work product protections to show that they are thoroughly cooperating with the government during a criminal case. Only organizations that take this step will be credited with fully cooperating, and therefore be given a reduced “culpability score” and the possibility of a lighter sentence.

The guidelines state that a waiver is not required, “unless such waiver is necessary in order to provide timely and thorough disclosure of all pertinent information known to the organization.” The ACLU said that overly broad language would make waivers the norm, and not exceptions. Organizations that do not waive privilege risk being labeled uncooperative. For businesses, that could negatively impact their image, stock values and credit ratings.

Moreover, waiving attorney-client privilege erodes trust between attorneys and their clients. Also, employees who unknowingly make incriminating statements to company attorneys risk having their Fifth Amendment right against self incrimination violated. This lack of trust will make it difficult for attorneys to ensure that organizations are in full compliance with the law.

“Ironically, this rule change may actually lead to more violations of the law,” said Jesselyn McCurdy, an ACLU Legislative Counsel. “Lawyers often serve as an internal mechanism for organizations to ensure that they are acting legally. However, their ability to provide counsel is greatly diminished if their clients are afraid to talk to them.”

To read the sign-on letter on the Sentencing Commission’s changes to the guidelines, go to:

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