Model Bar Powerpoint Presentation

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

       [updated 8/7/07]
 Protecting Attorney-
 Client Privilege, Work
Product, and Employee
      Legal Rights
 The ______ Bar Seeks Reversal of
  Harmful Federal Agency Policies
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
            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.
              The Problem
                  (continued)

► Most   troublesome is the DOJ policy.

   2003 “Thompson Memorandum”

   2006 “McNulty Memorandum”


        policies adopted by SEC, U.S.
► Similar
 Sentencing Commission, HUD, CFTC, EPA,
 and other agencies.
                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
             The Problem
                  (continued)



► Allthese policies, except Sentencing
  Guidelines, also pressure companies to
  forgo paying employees’ legal fees, fire
  employees, or take other punitive actions
  before guilt is shown.
   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.
  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.
     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.
  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
   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.
               New DOJ Policy
► JusticeDepartment 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
          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
                The Message
      new McNulty Memorandum falls far
► DOJ’s
 short of what’s needed and further erodes
 fundamental attorney-client, work product, and
 employee protections.

      policy continues to cause routine
► DOJ’s
 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
             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.

► Broadcoalition—from the U.S. Chamber to the
  ACLU—also strongly opposes the policy.
      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.
              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.
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