Sentencing Commission Strengthens Due Process Rights

Reverses Previous Guidelines Opposed by Chamber, Others

WASHINGTON, DC—The U.S. Chamber of Commerce won an important victory in its effort to protect the rights of businesses and their employees to consult freely with their attorneys with a recent decision to overturn sentencing guidelines regarding attorney-client privilege.

After months of hearings and testimony, the U.S. Sentencing Commission voted 6-0 to strike language which made the waiver of attorney-client privilege determinative of whether a company was cooperating with a government investigation.

"This privilege is at the heart of a defendant's right to effective counsel and a cornerstone of basic due process," said Tom Donohue, Chamber president and CEO. "If people cannot trust the confidentiality of their legal advisors, they will be much less likely to raise and address problems, such as complying with laws—including Sarbanes-Oxley—and uncovering fraud." Donohue testified last month before the House Judiciary Crime Subcommittee on the need protect the attorney-client privilege.

The Chamber's work with a coalition that included the American Civil Liberties Union, the American Bar Association, the Association of Corporate Counsel, the National Association of Criminal Defense Lawyers, the National Association of Manufacturers, and other business groups led to the U.S. Sentencing Commission's unanimous recognition of the need to overturn the earlier guidance on waivers that was adopted in 2004.

While the Department of Justice, the SEC, and other government prosecutors must still change their policies regarding waiver of the attorney-client privilege related to cooperation, the Sentencing Commission's decision makes clear that government prosecutors no longer have any independent support of their policies that undermine the rights of individuals and organizations to consult with their attorneys.

"While this fight is far from over, it's a significant step forward," said Donohue. "The Sentencing Commission is to be commended for their action today, but we will continue to work with our allies to ensure the erosion of attorney-client privilege is completely reversed."

The U.S. Chamber is the world's largest business federation representing more than 3 million businesses and organizations of every size, sector, and region.

Learn more at www.uschamber.com

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