September 2, 2008
By Brian W. Walsh and Stephanie A. Martz
Our two organizations, the Heritage Foundation and the National
Association of Criminal Defense Lawyers, are at opposite
ends of the conservative-to-liberal spectrum. But for more than
three years we have both been laboring, separately and together, to
convince the Department of Justice that it erred gravely by
adopting enforcement policies that dramatically damage the
Last month, David Laufman, a former chief of staff to one of the
deputy attorneys general in whose name the department issued these
harmful policies, wrote a commentary in Legal Times ["Give Justice
a Break," Aug. 18, Page 60] that called for us to "stand down"
because we've "already won one of the most remarkable retrenchments
in Justice enforcement policy in the department's history."
Part of his argument is correct. In a July 9 letter to Congress,
the Justice Department acknowledged the need to change most or all
of the offending policies. And last week Deputy Attorney General
Mark Filip formally announced new guidelines that constitute, to
borrow Laufman's words, "a further rollback of corporate
On the same day that Filip spoke, a much-anticipated judicial
decision also pointed in the right direction. The U.S. Court of
Appeals for the 2nd Circuit upheld the dismissal of criminal
charges against 13 former employees whom accounting giant KPMG had
"thrown under the bus" to avoid being indicted itself. Federal
prosecutors had pressured KPMG to stop paying the employees' legal
fees. The 2nd Circuit agreed with the lower court that prosecutors
had thereby interfered with the employees' Sixth Amendment right to
But while Laufman's characterization of Justice's "rollback" may
be accurate, and while the KPMG decision may prove cautionary and
curtail abuses by line prosecutors, we are not about to table our
efforts. Now is the time to consolidate this victory with
legislation addressing the same problems in all federal agencies so
that we do not have to fight these battles again.
First adopted in 1999, the Justice Department's harmful
enforcement policies have evolved into a de facto requirement that
a company waive the confidentiality of its employees' conversations
with its lawyers in order to avoid its own indictment. The policies
have also encouraged and sanctioned demands by prosecutors that
businesses refuse to pay employees' legal fees and fire employees
who assert their constitutional rights, and that they decline to
share information with employees that might be vital to the
employees' defense-all of this while the businesses' private
lawyers perform what should be the government's investigation.
In recent months, the Justice Department has responded to
widespread concerns about its arguably unconstitutional practices.
The win to which Laufman referred in his commentary was first
summarized in a July 9 letter that Filip sent to Sen. Patrick Leahy
(D-Vt.), chairman of the Senate Judiciary Committee, and was more
formally announced by Filip at an Aug. 28 press conference.
Filip withdrew the McNulty memo, which had been the most recent
iteration of Justice Department policy and which was an inadequate
attempt to address the substantial grounds for widespread
complaint. In reformulating that policy, Justice officials had met
several times with leaders of the bars of outside and in-house
counsel, as well as with business leaders and other legal policy
experts, to make sure that the department got it right. The result
is generally laudable.
The new policy states, for instance, that companies will no
longer be denied credit for cooperation if they choose to assert
the protections of the attorney-client privilege and work-product
doctrine. Similarly, the Justice Department will stop punishing
companies for sharing information necessary to their employees'
defense or fulfilling agreements to provide legal counsel to their
Moreover, Filip said that the new principles would not merely be
set forth in a memo from his office, but would be incorporated in
the United States Attorneys' Manual, "effective
So why aren't we critics satisfied now? Why are we still
insisting on passage of legislation like the proposed
Attorney-Client Privilege Protection Act?
We will continue to pursue legislation because, in the words of
American Bar Association president H. Thomas Wells Jr. last week,
such bedrock legal rights as the attorney-client privilege "must
not be dependent on the personal leanings of each new deputy
attorney general." A more permanent, less changeable solution than
the U.S. Attorneys' Manual is needed.
We will continue to push for legislation because the overweening
policies from which the Justice Department is now retreating began
with but has not ended with that department. Similar policies and
practices have seeped into numerous other federal agencies,
including the Securities and Exchange Commission and the
Environmental Protection Agency, and regrettably the addition to
the U.S. Attorneys' Manual appears to condone such policies. No
other federal agency with similar policies announced its own change
of heart last week.
We will continue to push for legislation because it was the very
real threat of legislation that captured the Justice Department's
attention. The Attorney-Client Privilege Protection Act,
having passed the House in November with overwhelming
bipartisan support, is pending in Leahy's committee. Before passage
began to look probable, Justice resisted our reform efforts tooth
and nail. If we back off now, how soon before prosecutors start
seeking ways around the restrictions of the new policy?
Laufman rewrote a little history when he suggested that the
Attorney-Client Privilege Protection Act was a
hard-headed, knee-jerk response to the department's good-faith
efforts to draft and revise its policies in late 2006. He stated
with bare technical accuracy that the bill, S. 186, was not
introduced until Jan. 4, 2007, one month after the McNulty memo was
released. What he failed to note is that the same legislation,
numbered as S. 30, was first introduced by Sen. Arlen Specter
(R-Pa.) on Dec. 8, 2006. The Justice Department's long-promised
McNulty memo showed up four days later.
The coalition that developed to oppose Justice's enforcement
policies spans the political spectrum from the American Civil
Liberties Union to the American Bar Association to the U.S. Chamber
of Commerce. A coalition this broad and with this much sustained
commitment over a period of years could only be motivated by
problems as troubling and widespread as those caused by the Justice
Department's corporate enforcement policies.
Laufman closed his commentary by arguing: "There will be plenty
of time for accountability and-with the arrival of a new
administration in January-the potential for even further policy
refinements. "That's exactly our point. After witnessing the
effects of the policies the Justice Department first said were
necessary nine years ago, the last thing anyone should want is more
years of policy "refinements" by a new administration.
Today, well-regarded law institutes provide continuing legal
education courses advising lawyers on how to handle federal
"requests" for waiver of attorney-client privilege and work-product
protections. When the Justice Department first adopted its
objectionable policies, no one would have thought that waiver
"requests" by federal agencies would become so commonplace that
such courses would now be necessary. We intend to continue our
efforts until they no longer are.
Brian W. Walsh is
Senior Legal Research Fellow in the Center for Legal and Judicial
Studies at The Heritage Foundation
First appeared in www.law.com
The long fight to protect the attorney-client relationship against aggressive prosecutors can only end with legislation
Rule of Law Initiative of the Leadership for America Campaign
Brian W. Walsh
Senior Legal Research Fellow
Read More >>
Stephanie A. Martz
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