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October 15, 2007
Senate takes up attorney-client privilege bill

A bill, supported by The Florida Bar, aimed at protecting the attorney-client privilege in federal criminal investigations, has had its first hearing in the U.S. Senate Judiciary Committee.

S. 186, sponsored by Sen. Arlen Specter, R-Pa., was taken up by the committee on September 18, but its future remained uncertain.

The bill would prohibit federal prosecutors from asking corporations to waive their attorney-client privilege or attorney work product privilege in exchange for prosecutors determining they have cooperated with a criminal investigation.

It would also prohibit prosecutors from pressuring companies, in order to gain the same favorable consideration, not to honor agreements to pay for employees’ legal defenses or to punish employees who invoke the Fifth Amendment.

The Florida Bar’s Attorney-Client Task Force recommended supporting the bill, saying current federal practices undermine the essential attorney-client relationship, which in turn makes it harder for attorneys to do their jobs. The Bar Board of Governors approved that recommendation, along with other proposals from the task force. (See the July 1, 2007, Bar News.)

A similar bill, H3013, has passed the House Judiciary Committee and is pending consideration by the full chamber.

Specter announced at the meeting his intention to bring the bill to a committee vote as soon as possible and then, if it passes the committee, seek action from the full Senate.

But the bill’s future appeared uncertain. Committee Chair Sen. Patrick Leahy, D-Vt., indicated he had not decided whether to support the measure. He left shortly after the meeting started. The only other committee member present, Sen. Jeff Sessions, D-Ala., expressed concerns about the bill and said he is not ready to support it. Other members of the committee who were not present — Sens. Richard Durbin, D-Il., Charles Schumer D-N.Y., Joseph Biden, D-De., Benjamin Cardin, D-Md., and Lindsey Graham, R-S.C., — have expressed interest in the bill, according to the ABA, which is overseeing a lobbying effort to support the legislation.

The ABA did not verbally testify at the meeting, but submitted extensive written comments. The committee did hear from former U.S. Attorney General Richard Thornburg, a member of the ABA’s task force on that issue, and former Attorney General Edwin Meese, both of whom supported the bill, as do a variety of business and civil liberties groups. But representatives of the U.S. Justice Department, as well as Columbia Law School Professor Daniel Richman and University of Florida Law School Professor Michael L. Seigel, spoke against the bill, saying there is little evidence of abuse and hence no need for legislative action. Seigel is a member of the Bar’s Attorney-Client Task Force who dissented from its recommendation to support the Specter bill.

The committee also received a report compiled by former Delaware Supreme Court Chief Justice E. Norman Veasey on anonymous reports by lawyers of alleged abuses by federal prosecutors in seeking waivers.

The Florida Bar did not present any written or verbal testimony, but President Frank Angones has sent a letter to the entire state congressional delegation urging them to support the respective House and Senate legislation.

The written and spoken testimony for the committee can be found online at: http://www.abanet.org/ poladv/priorities/privilegewaiver/ sept18witstatemnts.pdf.

The dispute between business and civil liberties groups and the government over prosecutorial tactics heightened in 2003 when the Justice Department issued what is known as the Thompson memorandum. That memorandum said it was proper for prosecutors to weigh a company’s cooperation — including waiving attorney-client privilege — in determining whether to bring criminal charges against that company.

DoJ issued the McNulty memo last December, which refined the earlier memo, by saying prosecutors could not use a company paying for employees’ legal defenses as leverage, and requiring approval from Washington before seeking a waiver of attorney-client privilege. But critics have said abuses have continued.

[Revised: 10-31-2014]