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Chamber Warns of Erosion of Attorney-Client Privilege

Monday, March 6, 2006 - 7:00pm

WASHINGTON, D.C.—Congress should take steps to protect the Constitutional right to attorney-client privilege, according to U.S. Chamber President and CEO Tom Donohue in testimony today before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security.

"The privilege to consult with an attorney freely, candidly, and confidentially is a fundamental Constitutional right that is under attack," said Donohue. "Recent policy changes at the Department of Justice and the Securities and Exchange Commission have permitted and encouraged the government to demand or expect companies to waive their attorney-client privilege during an investigation."

The DOJ, SEC, and other enforcement agencies routinely require or expect waivers of this privilege, creating an untenable situation for businesses, their employees, and attorneys. 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.

In his testimony, Donohue highlighted the results of a survey released publicly today by the Coalition to Preserve the Attorney Client Privilege, of which the Chamber is a member. The survey showed widespread evidence that waiver requests have become more routine. More than 1,000 in-house attorneys and outside attorneys from a variety of companies and industries responded to the survey.

"The assault on the attorney client privilege by the Department of Justice and other federal regulators threatens American businesses and their employees," continued Donohue. "Overzealous prosecutors are jeopardizing the free flow of information that is vital to run well-managed companies and are in the process eroding one of the most basic and fundamental rights in our country."

The Coalition to Preserve the Attorney Client Privilege is working to modify a U.S. Sentencing Commission guideline on privilege waivers that was adopted in 2004. The Chamber also intends to advocate policy changes at DOJ, the SEC, and other regulatory agencies and, if necessary, take this issue to the courts.

Donohue's testimony can be viewed at: http://www.uschamber.com/issues/testimony/2006/060307attorneyclientprivilege.htm

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.

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