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February 01, 2011

Washington News Briefs

FINANCIAL ACTION TASK FORCE: The ABA submitted comments Jan. 7 to the Financial Action Task Force (FATF), an intergovernmental body created in 1989 to develop and promote polices at the national and international levels to combat money laundering and terrorist financing. The ABA comments offered recommendations for further improving the FATF’s “Consultation Paper,” which seeks to update and refine the entity’s existing anti-money laundering and terrorism financing (AML/CFT) standards. In the ABA comments, Kevin L. Shepherd, chair of the ABA Task Force on Gatekeeper Regulation and the Profession, urged the FATF to modify its proposals in numerous ways to ensure that the new AML/CFT standards are consistent with the Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing adopted by the ABA last August. Shepherd cautioned in his letter that any changes in the risk-based approach to combating money laundering should respect the considerable time the legal profession spent to develop the carefully balanced system outlined in the ABA Good Practices Guidance. In addition to his comments on a number of issues in the consultation paper, Shepherd suggested ways to make the consultative process more reflective of the interests, goals and concerns of the private and public sectors by providing more opportunity for dialogue before deciding on a course of action. He also expressed concerns that the timetable for the proposed reforms is too compressed and requested that FATF allow more time for consultation between the private and public sectors. Completion of the standards is set for October 2011.

WEBSITE ACCESSIBILITY: The ABA submitted comments Jan. 21 to the Department of Justice (DOJ) Civil Rights Division expressing the association’s position that all legal websites should be made fully accessible whether they are publicly or privately owned or supported. The comments were in response to an advance notice of proposed rulemaking entitled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. The DOJ solicited the comments as it develops standards for accessibility of websites for individuals with disabilities, focusing on a proposed time frame for compliance, burdens and costs related to compliance, and any potential unintended consequences of website accessibility requirements. Katherine H. O’Neil, chair of the ABA Commission on Mental and Physical Disability Law, noted in the ABA comments the “obvious link between the accessibility of legal websites and the ability of people with disabilities to find employment as lawyers and paralegals, to access legal information and services, and to obtain competent legal representation.” She emphasized that the ABA, which does not support mandatory rules with the force of law on accessibility of websites, proposes that the first step in the process of migration to fully accessible websites should be the creation of standards and encouragement of their use. O’Neil suggested that the DOJ be mindful of the more limited resources that ordinarily characterize smaller public entities in the legal profession that may require additional time to comply with any new regulations. She also encouraged the government to lead the way in use and support for development of relevant technology for consumer products that make websites accessible.    

ATTORNEY-CLIENT PRIVILEGE: ABA President Stephen N. Zack urged the U.S. Department of Housing and Urban Development (HUD) Feb. 8 to reconsider and revise their policies that have had the effect of eroding fundamental attorney-client privilege and work product protections. In a letter to HUD Secretary Shaun Donovan and HUD Acting Inspector General Michael P. Stephens, Zack urged the department to rescind its existing guidance that pressures public housing agencies (PHAs) and other grantees to execute an upfront waiver of their attorney-client privilege and work product protection, and to stop penalizing grantees that decline to follow the guidance. According to Zack, the current HUD guidance “urges” all PHAs to attach an Addendum to contracts with outside counsel for professional legal services that restricts the ability of the PHA’s lawyers to assert the attorney-client privilege, the work product doctrine, or any other discovery privileges on behalf of their PHA clients during HUD inspector general information requests, reviews, investigations and enforcement proceedings. Zack emphasized that even though the use of the Addendum is not required, HUD and Office of Inspector General (OIG) staff continue to issue direct requests for PHAs and other grantees to waive their attorney-client privilege and work product protections. HUD recently has been suspending its approval of contracts with legal counsel, including litigation contracts, when PHAs decline to waive the privilege. The ABA believes there should be a clear directive to HUD and OIG employees prohibiting them from requesting waivers. Zack noted that the ABA’s request is consistent with actions already taken by a number of federal agencies, including the Justice Department, that have replaced their previous privilege waiver guidelines with ones that specifically direct their officials “not to pressure companies and other organizations to waive their attorney-client privilege and work product protections during investigations.”

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