A Change of Heart for the DOJ: Policy Run Amok or Greater Respect for Ethical Norms?

Georgetown Journal of Legal Ethics, The, Summer 2007 by Brody, Katherine R, Tatarowicz, Chris

The Coalition and ABA Task Force worked together to prepare suggested revisions to the Thompson Memo to protect the attorney-client privilege and work product doctrine without undermining effective law enforcement.105 The ABA sent a letter to Attorney General Alberto Gonzales advocating, unsuccessfully, for the adoption of these proposed amendments to the Thompson Memo.106 The Coalition and ABA also participated in lobbying Congress to address the Thompson Memo's threat. On March 7, 2006 the Coalition submitted testimony to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security stating its support for protecting the attorney-client privilege and work product doctrine and introduced a survey to emphasize its concern.107 This 2005 survey on the erosion of privilege found that seventy-five percent of over 700 responding corporate lawyers agreed that a '"culture of waiver' had evolved in which governmental agencies believefd] it [was] reasonable and appropriate for them to expect a company under investigation to broadly waive attorney-client privilege or work product protections."108 Moreover, the survey affirmed that the attorney-client privilege and work product protections promoted the important legal and ethical principles of candid client-attorney communication, the delivery of legal services, and effective corporate compliance initiatives.109 Seven months later, Thomas J. Donohue, President and CEO of the U.S. Chamber of Commerce, a Coalition member, and Karen J. Mathis, President of the ABA, testified before the Senate Committee on the Judiciary to express their opposition to the Thompson Memo's effect on privilege, work product doctrine, and employees' constitutional and other legal rights, namely the indemnification of legal fees.110

B. PROPOSED LEGISLATION IN CONGRESS

Perhaps the deciding blow against the Thompson Memo came not from an interest group but rather from Congress itself. On December 8, 2006, Senator Arlen Specter introduced the "Attorney-Client Privilege Protection Act of 2006."111 This bill called for sweeping reform to prosecutorial conduct, and would have "completely moot[ed] many of the hotly contested issues raised by the Thompson Memorandum."112 Specifically, the bill provided that prosecutors may not demand or request any privileged materials or attorney work product from a corporation under investigation. They also may not condition a charging decision on either the disclosure or non-disclosure of such materials or the payment of legal fees.113 Furthermore, the language of the bill reached beyond the scope of federal prosecutors and applied to any "agent or attorney of the United States" in "any Federal investigation or criminal or civil enforcement action."114 Less than a week after this bill was introduced, Paul McNulty issued his revised version of the Thompson Memo.115

V. DOES THE MCNULTY MEMO SUFFICIENTLY ADDRESS THE ETHICAL CONCERNS RAISED BY THE THOMPSON MEMO?

Without yet knowing how federal prosecutors will act under the recently revised policy on corporate prosecution, it is impossible to know for sure whether the new McNulty Memo will adequately safeguard the ethical principles that were tiireatened by the Thompson Memo. At the very least, this latest policy revision is encouraging from an ethical viewpoint because it acknowledges the vital importance of the attorney-client privilege and work product doctrine.116 Furthermore, the McNulty Memo acknowledges the criticism surrounding the Thompson Memo and shows an awareness that the public will not accept DOJ policies that undermine ethical principles, legal rights, and the adversarial system. In light of the Justice Department's history of disregard for certain ethics rules, any step towards a greater respect of ethical norms, superficial or not, is a step in the right direction. Nevertheless, many people have already expressed dissatisfaction over the McNulty Memo and would like to see the Justice Department do more.