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Judicial Oversight of the Legal Profession

The ABA supports the attorney-client privilege and the lawyer’s ethical duty of confidentiality, as both principles are essential to protecting the client’s right to the effective assistance of counsel. In addition, the ABA believes that regulation and oversight of the legal profession should continue to be vested in the court of highest appellate authority of the state in which the lawyer is licensed, not federal agencies or Congress, and that the courts are in the best position to fulfill that important function. The ABA has successfully defeated many federal measures that would undermine these fundamental principles, and it continues to vigorously oppose other similar measures.

Oppose Measures that Undermine the Attorney-Client Privilege and the Lawyer’s Ethical Duty of Confidentiality

For years, the ABA has spoken out against numerous federal agency policies and proposed rules that undermine attorney-client privilege, work product protections, and the lawyer’s ethical duty to preserve client confidentiality. For example, the ABA persuaded U.S. Customs and Border Protection to revise its border search policy in 2018 to increase protections for privileged information contained on lawyers’ laptops, cell phones, and other electronic devices. The ABA also helped convince the Consumer Financial Protection Bureau (CFPB) not to adopt a new rule in 2020 that would have greatly expanded its discretion to disclose confidential and privileged information it receives from regulated entities to many other foreign and state agencies and other entities that exercise governmental authority.

The ABA has also been successful in reversing various federal agency policies that pressure companies to waive their attorney-client privilege and work product protections during investigations and other agency proceedings. For example, the ABA and its allies persuaded the Justice Department, Sentencing Commission, Securities and Exchange Commission, Commodity Futures Trading Commission, and other agencies to revise their policies to better protect the privilege and work product.

Despite these encouraging developments, many other federal agencies—including the Treasury Department, CFPB, other federal banking regulators, and the Federal Energy Regulatory Commission—have adopted or are considering adopting policies or rules requiring entities to disclose information protected by the attorney-client privilege, the lawyer’s ethical duty of confidentiality, or both in a variety of situations. Therefore, ABA must continue to engage these and other federal agencies as needed to protect the privilege, work product, and client confidentiality.

Oppose Regulations that Conflict with and Undermine the State Supreme Courts’ Authority to Regulate and Oversee the Legal Profession

The ABA has also consistently opposed legislation, proposed agency rules, and other measures that would impose burdensome gatekeeper regulations on lawyers engaged in the practice of law and undermine judicial regulation and oversight of the legal profession. Last year, the ABA and its state and local bar allies persuaded Congress to reject harmful legislation known as the ENABLERS Act (H.R. 5525 and proposed amendments to FY 2023 National Defense Authorization Act and the FY 2023 omnibus spending bill) that would have regulated many lawyers and law firms as "financial institutions" under the Bank Secrecy Act and required them to report privileged and other protected client information to the government. The ABA also submitted written comments to the Treasury Department and the Financial Action Task Force urging them not to adopt new proposals requiring lawyers and law firms to report confidential information about their clients and their clients’ real estate transactions to the government and to file secret suspicious activity reports on those client transactions. Proponents of the ENABLERS Act and the Treasury and FATF proposals are expected to continue to press for adoption of these measures in 2023.

During the 117th Congress, the ABA also worked with its congressional allies to craft legislation known as the Restoring Court Authority Over Litigation Act. This important legislation, which is supported by the ABA and the Conference of Chief Justices, would protect the courts’ exclusive authority to regulate and discipline lawyers engaged in litigation activities and prevent federal agencies from undermining the courts’ proper role.

The ABA will continue its efforts to advance similar legislation in the new 118th Congress. In addition, it is important that the ABA continue to closely monitor and vigorously oppose any new legislation, proposed regulations, or other measures that would impose burdensome regulations on lawyers or undermine the attorney-client privilege, the confidential lawyer-client relationship, or the state supreme courts’ longstanding authority to regulate and oversee lawyers engaged in the practice of law.