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The right to counsel

Tampering with attorney-client privilege in white-collar cases should be curtailed by Congress.

September 18, 2007

As every viewer of "Law & Order" knows, you have a right to an attorney. But if you're the target of a white-collar criminal investigation, the Justice Department may try to weaken that right by punishing your employer for volunteering to pay your legal fees. Or, if you're the employer, it might pressure you into waiving the lawyer-client privilege in exchange for credit for cooperating with a companywide investigation.

In both cases, an overzealous government is taking aim at a privilege that goes back to Elizabethan England and serves the interests of society as a whole. It can sometimes frustrate prosecutors -- as do spousal, doctor-patient, priest-penitent and other privileges. But society benefits when patients are candid with their doctors and when sinners can confess. This page has urged Congress to recognize a similar privilege for anonymous sources and reporters. As for lawyers and clients, it is important to realize that in addition to appearing in court, lawyers offer advice about how to avoid violating the law. Employers and employees alike would be less likely to seek such advice if their conversations don't remain confidential.

Today, the Senate Judiciary Committee will hold a hearing on whether Congress should rein in the government's meddling. The panel is considering legislation, already approved by a voice vote by the House Judiciary Committee, that would prohibit federal prosecutors and other officials from pressuring any company to disclose information protected by the lawyer-client privilege or to penalize employees who assert their rights.

The Attorney-Client Privilege Protection Act of 2007 aims to overturn a memorandum issued by former Deputy Atty. Gen. Paul McNulty that permits these and other practices. The policy of "forced waivers" of the privilege has been criticized by the American Bar Assn., the American Civil Liberties Union and former high-ranking Justice Department officials, such as U.S. attorneys general Dick Thornburgh (who will testify today) and Griffin Bell.

Undermining the lawyer-client privilege is pernicious in itself, but there are also ripple effects. If a company waives the privilege as part of a criminal investigation, it makes formerly privileged documents available in future civil suits. Moreover, pressure to waive the privilege can make corporate wrongdoing harder to detect by removing the incentive for employees to speak frankly to the lawyers who often conduct internal investigations.

If Congress doesn't act to end these abuses, the courts are willing to step in. In July, a federal judge in New York threw out tax-fraud charges against 13 former partners of the accounting firm KPMG because, as part of an agreement with the government, the company refused to pay the legal fees of the defendants. Rather than rely on such case-by-case justice, Congress should enact the Attorney-Client Privilege Protection Act.

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