New DOJ Policy Does Not Adequately Protect Attorney-Client Privilege

WASHINGTON, D.C.-Stanton D. Anderson, Senior Counsel to the President of the United States Chamber of Commerce, issued the following statement on the McNulty memorandum that revises the Department of Justice's policies on attorney-client privilege:

"While containing some improvements, this new policy does not adequately protect the right to attorney-client privilege, and unwisely ignores many of the recommendations of former senior Justice Department officials, the American Bar Association, and a massive coalition of some of the nation's most prominent business, legal, and civil rights groups.

"We support DOJ's position that eliminates payment or reimbursement of legal fees as a factor of consideration. And although DOJ now says front-line prosecutors cannot formally request waivers without first getting approval from the Deputy Attorney General's office (DAG), waiver of privilege can still be considered a sign of cooperation in determining charging decisions. That's not good enough. As long as the DAG can decide whether or not to demand waiver, the privilege is uncertain. An uncertain privilege is no privilege at all.

"DOJ should take its cue from the policies outlined in legislation recently introduced by Sen. Arlen Specter that enjoy broad bipartisan support. Unfortunately, the McNulty memorandum diverges from the Specter bill in several key areas: it leaves requests for waiver at the discretion of DOJ; it allows prosecutors to continue penalizing companies for entering into joint defense agreements or for sharing legal documents with their employees; it allows prosecutors to penalize companies who do not fire employees who are simply under investigation; and it would allow prosecutors to treat companies who waive their attorney-client privilege more favorably than those who do not."

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

www.uschamber.com

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