Legal News

Former DOJ?ers Urge Congress to Shore Up Attorney-Client Privilege

By Dan Slater

Last week, in the context of the Bear Stearns indictment, we focused on a statement made by one of the defendants, Matthew Tannin, suggesting that the issue of attorney-client privilege factored into his decision not to seek the advice of a Bear lawyer. Is it possible that Tannin had the McNulty Memo on the brain?

Late Friday, 33 former U.S. attorneys sent a letter to Vermont Senator Patrick Leahy, the chair of the judiciary committee, urging him to hold a vote on the Attorney Client Privilege Protection Act of 2007, which, they claim, would put an end to the DOJ’s “widespread practices and policies that pressure businesses to waive the attorney-client privilege in return for avoiding a harsher charging decision.” Under the 2006 McNulty Memo, they argue, prosecutors can demand that a business waive the privilege in regard to communications between company counsel and employees in return for leniency for the company. (See, e.g., KPMG)

Here’s the letter. (Noticeably absent from the letter is the signature of former deputy AG Paul McNulty, who last year left the AG’s office to join Baker & McKenzie.)

The Legal Times notes that, on the other side of the argument, DOJ officials say that the proposed legislation would weaken the government’s ability to uncover corporate wrongdoing. Earlier this month, AG Mukasey said: “We think and continue to think that the McNulty memo is working and has worked. There were either no or very, very, very small numbers for actual requests of waiver of the privilege.”

Full post as published by Law Blog - WSJ.com on June 23, 2008 (boomark / email).