Environmental Law

McNulty, Filip and the Attorney-Client Communication Privilege

By Walter James

I agree with the opinion expressed in the editorial below which appeared in the Los Angeles Times on September 4, 2008.  Regardless of new policy, loopholes abound and the potential for abuse exists.  What follows is the editorial in its entirety. 

Protecting the lawyer-client relationship

Congress should pass the Attorney-Client Privilege Protection Act.

September 4, 2008

As the end of the Bush administration looms, the Justice Department has reversed a policy that undermined one of the pillars of the Anglo American legal system -- the confidential relationship between a lawyer and his client. But to ensure that the next administration doesn't reinstate the flawed policy, Congress should pass remedial legislation.

Last week, Deputy Atty. Gen. Mark Filip rescinded rules that had allowed prosecutors in white-collar crime cases to promise corporate executives leniency in exchange for waiving the lawyer-client privilege or refusing to pay their lawyers. The rules, adopted in 2003 in the aftermath of the Enron scandal, provoked opposition from a diverse alliance that included the American Bar Assn., the American Civil Liberties Union and former U.S. attorneys general from both parties.

Coincidentally, the Justice Department relaxed the rules on the same day a federal appeals court upheld the dismissal of charges against 13 ex-employees of the KPMG accounting firm because the government used "overwhelming influence" to pressure the company into refusing to defray their legal costs. The case had increased support for the Attorney-Client Privilege Protection Act (HR 3013), which passed the House and awaits action in the Senate.

That legislation still should be enacted because a future administration could overturn Filip's action. White-collar criminals are a politically popular target, as are lawyers who help their clients -- be they accused murderers or targets of a fraud investigation -- to assert their constitutional rights. Courts sometimes correct the worst prosecutorial excesses, but Congress also has a role to play.

Another reason to enact the legislation is that Filip's action applies only to the Justice Department, not to such agencies as the Securities and Exchange Commission, the Environmental Protection Agency and the Department of Housing and Urban Development. By contrast, the Attorney-Client Privilege Protection Act protects the privilege in "any federal investigation or criminal or civil enforcement matter."

The lawyer-client privilege, which can be traced back to Elizabethan England, undoubtedly makes it harder for prosecutors to build their cases. But the same is true of other privileges recognized by the law, including those covering communications between husband and wife, priest and penitent, and doctor and patient. All of these reflect the principle that law enforcement must not seek the truth at any cost. That applies equally to investigations of crime in the streets and in the boardroom.

More later.

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

WDJiii

Full post as published by Environmental Crimes Blog on September 07, 2008 (boomark / email).