Maryland Bar Bulletin
Publications : Bar Bulletin : April 2006

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MSBA Joins ABA in Quest to Protect Attorney-Client Privilege

~Federal policies could threaten attorney rights~

To preserve the attorney-client privilege and work-product doctrine, the Maryland State Bar Association (MSBA) has joined the American Bar Association (ABA) in its quest to protect the fundamental rights of lawyers and clients from threats by federal government policies and practices. The specific threat stems from the U.S. Justice Department's adoption of a dangerous policy enabling prosecutors to routinely pressure companies and organizations to waive their privileges as a condition of cooperation during investigations. These privileges, which allow clients to communicate with their lawyer in confidence, are one of the foundations of our Rule of Law.

On February 15, MSBA's Board of Governors (BOG) voted to support the ABA in opposing governmental policies, practices and procedures that can erode the attorney-client privilege. The BOG believes these core, bedrock issues of the practice of law must be protected. To preserve this fundamental right of Maryland lawyers, MSBA President J. Michael Conroy, Jr. has created a MSBA Protection of Attorney/Client Privilege and Attorney Work Product Committee to investigate this matter and assure that the privileges are protected in Maryland.

The attorney-client privilege enables individual and organizational clients to communicate with their lawyers in confidence. It allows clients to seek guidance on how to conform with the law and facilitates self-investigation into past conduct to identify shortcomings and remedy problems. This privilege benefits corporate institutions, the investing community and society as a whole.

According to the ABA, the use of coercion involving the Justice Department's privilege-waiver policy, formally established by the Department's 1999 "Holder Memorandum" and 2004 "Thompson Memorandum," has increased dramatically in recent years. The problem was exacerbated in 2004 when the U.S. Sentencing Commission added language to Section 8C2.5 of the Federal Sentencing Guidelines authorizing and encouraging the government to seek waiver as a condition for cooperation.

The ABA reports that many lawyers are complaining that their clients have been and are being coerced into waiving the privilege. To further complicate the issue, all U.S. attorneys have now been instructed to adopt a "written waiver review process" for their districts and implement it. The ABA warns this may result in numerous different waiver policies across the U.S. which may impose only token restraints on the ability of federal prosecutors to demand waivers.

To address this growing threat to lawyers, the ABA has created a Task Force on Attorney Client Privilege to examine the policies and practices of various federal agencies that have eroded the attorney-client and work product privilege. MSBA's new Committee will work closely with the ABA to ensure that these privileges for all Maryland attorneys and their clients are protected. For further information, refer to www.abanet.org/buslaw/attorneyclient.

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Publications : Bar Bulletin: April 2006

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