Sen. Arlen Specter has made good on his threat to introduce legislation that aims to protect attorney-client confidentiality in corporate criminal cases. The measure, the Attorney-Client Privilege Protection Act, is a last-minute effort by the Republican lawmaker from Pennsylvania to get the issue in front of the Department of Justice before the 109th Congress adjourns and Specter ends his chairmanship of the Senate Judiciary Committee.
Hoping to spur the DoJ into changing its own policy, the legislation — which was introduced on Thursday — would nix the guideline DoJ prosecutors have been using to gauge a company’s level of cooperation. The guideline, known as the Thompson memo, has controversial provisions that put pressure on companies to cut off legal support to employees accused of wrongdoing and waive the attorney-client privilege rights in return for lenient treatment.
Specter says the memo, crafted in 2003 by then–Deputy Attorney General Larry Thompson, is “excessive and it impinges upon the constitutional right to counsel.” The memo has come under fire in the past year, notably during the preliminary hearings for KPMG’s tax-shelter scandal case in June. In that case, the judge and critics said prosecutors used the memo’s provisions to support what some experts considered aggressive prosecution methods. As a result, U.S. District Court Judge Lewis Kaplan deemed the prosecutors’ actions “unconstitutional” for pressuring the company to cut off the 16 defendants’ legal funds. He has since postponed the trial indefinitely since the former KPMG employees are unable to pay their legal bills.
The text of the new bill attacks the memo, saying “the Department of Justice and other agencies have increasingly employed tactics that undermine the adversarial system of justice, such as encouraging organizations to waive attorney-client privilege and work product protections to avoid indictment or other sanctions.” The memo’s use has even been criticized by Thompson himself, who admitted last week at a Heritage Foundation conference that it should be revised. “It was anticipated and actually included in the memorandum that waiver of attorney-client privilege would only exist in a limited kind of situation and only in the context necessary to facilitate cooperation,” he said.
Thompson, who now provides general counsel for PepsiCo, underscored the fine line prosecutors must walk as they push to gather as much information as they can from corporations without compromising the integrity of an investigation. “Cooperation is the mother lode of law enforcement,” he said. “If you do not have cooperation and don’t have a way to get cooperation, you really won’t be able to solve most criminal probes.”
Other calls for revisions have come from the U.S. Chamber of Commerce, the American Civil Liberties Union, and the American Bar Association — whose Presidential Task Force on the Attorney-Client Privilege members include Thompson. This unlikely alliance is trying to protect fundamental rights, says Jan Handzlik, a partner at Howrey LLP and a former federal prosecutor.