The ABA has been working closely with a broad coalition of business and legal groups—ranging from the U.S. Chamber of Commerce to the American Civil Liberties Union—and with many state and local bar associations in an effort to reverse these government policies. The Senate and House Judiciary Committees held four separate hearings on this issue since early 2006 and the coalition testified and/or submitted written statements at each hearing. The ABA also sent letters to the Justice Department (May 2006, PDF), the U.S. Sentencing Commission (March 2006, PDF), the Commodity Futures Trading Commission (July 2006, PDF), the Department of Housing and Urban Development (December 2006, PDF and February 2011, PDF), the Securities and Exchange Commission (February 2007, PDF), the General Services Administration/FAR Councils (June 2008, PDF), and the Treasury Department's Office of Foreign Assets Control (November 2008), urging them to reverse or modify their respective waiver policies.
After considering the concerns raised by congressional leaders, former Justice Department officials and many in the legal and business communities, the Sentencing Commission and the Commodity Futures Trading Commission voted to reverse their privilege waiver policies in April 2006 and March 2007, respectively. In addition, the Justice Department replaced the McNulty Memorandum with revised corporate charging guidelines (PDF) in August 2008 stating that while prosecutors may require companies to produce relevant facts during investigations in return for cooperation credit, they can no longer require or even ask companies to waive their attorney-client privilege or work product protections or to forego paying their employees’ legal fees. The SEC also issued a revised Enforcement Manual (PDF) on January 13, 2010 that provides additional guidance for agency staff but does not formally change the SEC's waiver policy outlined in the Seaboard Report. Although the Manual generally directs agency staff not to request waiver of the privilege during most investigations, the Manual contains several significant exceptions and does not provide adequate protection for the privilege and employee legal rights.
In November 2007, the House overwhelmingly approved comprehensive legislation known as the “Attorney-Client Privilege Protection Act” (H.R. 3013) that would prevent the government from pressuring companies and other organizations to waive their attorney-client privilege, work product, or employee legal protections during investigations. Many of the bill’s reforms were later adopted by the Justice Department in its revised corporate charging guidelines. But unlike the limited scope of the revised DOJ policy, the reforms in the House bill—sponsored by Representatives John Conyers (D-MI), Bobby Scott (D-VA), and Lamar Smith (R-TX)—would apply to all federal agencies. A Senate companion bill, S. 3217, sponsored by Senators Arlen Specter (D-PA), (Vice President) Joseph Biden (D-DE) and 12 other Senators from both parties, was also introduced in the 110th Congress but failed to receive a vote. Senator Specter and Representative Scott reintroduced similar legislation, S. 445 and H.R. 4326, in the 111th Congress, but there was no further action on either bill.
While the revised Justice Department policy is a welcome and important improvement over its previous policy outlined in the McNulty memorandum, a comprehensive solution to the ever-widening problem of government-coered waiver is still critically needed. Therefore, the ABA and its coalition allies strongly support the adoption of a Presidential executive order applying the basic DOJ reforms to all federal agencies or the enactment of comprehensive federal legislation like the Attorney-Client Privilege Protection Act (ACPPA).