ACLU Supports Legislation Aimed At Protecting Attorney-Client Privilege

As a court-protected doctrine, the attorney-client privilege is the oldest of the evidentiary privileges and is a cornerstone of our justice system. This right is so important that the reaffirmation of it in the face of the U.S. Department of Justice’s attack requires legislation in Congress -- The Attorney-Client Privilege Protection Act of 2007 (H.R. 3013 and S. 186).

The legislation is aimed at protecting the right to legal counsel for all Americans by prohibiting federal prosecutors from pursuing privileged information, while allowing people to cooperate with the government by voluntarily turning over information.

The Attorney-Client Privilege Protection Act was filled in reaction to some of the overly aggressive and constitutionally questionable practices of the current administration’s Department of Justice.

Current Department of Justice policies and practices continue to erode the attorney-client privilege and place untenable pressure on companies, organizations and employees to waive basic constitutional rights guaranteed to every person under the Sixth Amendment to the Constitution.

These policies allow prosecutors and enforcement agents to assume the mantle of the role properly reserved for impartial courts and judges. In addition, these administration policies contain separate provisions that have been found to violate employees’ Sixth Amendment right to counsel and Fifth Amendment right against self-incrimination by pressuring companies to not pay their employees’ legal fees during investigations, to fire the employees for not waiving their rights, or to take other punitive actions against them long before any guilt has been established.

Caroline Fredrickson, director of the ACLU Washington Legislative Office, said of the proposed legislation:

“The Attorney-Client Privilege Protection Act is necessary in order to protect against overzealous government investigations that have violated the constitutional rights guaranteed to all Americans. Forcing organizations and their employees to give up their attorney-client privilege is an assault on the constitutional right to have legal representation -- a bedrock principle of our legal system. American workers must have the right to speak freely and without hesitation about problems in the workplace, without worry that such conversations will be turned over to government prosecutors. The right to counsel is fundamental to our justice system, and affords all Americans the opportunity to defend themselves against criminal prosecution.”

A number of former senior Department of Justice officials who served in both Republican and Democratic administrations who are concerned with the DoJ’s current practices and policies agree with the need for legislation. In a July 2007 letter to the chairs of the House and Senate Judiciary Committees they said, “ It is our considered judgment that the time has arrived for Congress to restore the proper balance between the tools that the government needs to fight corporate crime and the rights of both individual and corporate citizens. Indeed, the need for such balance lies at the heart of the separation of powers between the three branches of government. Accordingly we hope that you and your colleagues will support the prompt enactment of the Attorney-Client Privilege Protection Act of 2007.”

H.R. 3013 & S.186 simply and clearly prohibit U.S. government employees, directly or indirectly, from pressuring companies, unions or non-profit organizations to waive their attorney-client privilege or to take actions that adversely affect the rights of their employees as an indicator of their cooperation in an investigation.

The Attorney-Client Privilege Protection Act of 2007 is a carefully crafted and judicious tool that is designed solely to address prosecutorial and enforcement practices that have cropped up in the last decade and does not in any way amend the application of privilege rights or law, or impede government investigations into corporate wrongdoing. It ensures that federal officials must play by the same rules that apply to all other parties in civil and criminal cases. The bills reverse DOJ enforcement policies and practices adopted in the last few years that erode both the attorney-client privilege, as defined by the courts, and other fundamental defense rights, as defined by the justice system and Constitution.

Vermonters can play a key role in the passage of this bill. The House has already passed the legislation, with Rep. Peter Welch in support. A Senate version of the bill (S.186, The Attorney Client Privilege Protection Act)is pendingin the Senate Judiciary Committee, chaired by Sen. Patrick Leahy.

American Bar Association Q&A on attorney-client privilege

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