Michael S. Greco, president of the American Bar Association, recently issued the following statement in response to the U.S. Sentencing Commission's vote rescinding the 2004 Privilege Waiver Amendment:
The U.S. Sentencing Commission advanced the cause of justice and of corporate governance in the public interest on April 5, 2006 when it voted unanimously to rescind its policy authorizing and encouraging prosecutors to require corporations and other business entities to waive the attorney-client privilege and constitutional protections in order to receive 'credit' for 'cooperating' in government investigations.
The attorney-client privilege is a bedrock of our democracy that is grounded in a constitutional right to effective assistance of counsel, and in the centuries-old principle that society benefits when there is full and frank discussion between lawyers and their clients. In the corporate context, just as with individual clients, such frank communication enables lawyers to counsel their clients how best to comply wit the law. In the corporate setting, guidance in compliance with the law benefits investors in business, current and past employees, those who contract with a corporation, and consumers.
The U.S. Sentencing Commission's action responds to shared concerns of the American Bar Association and other groups including such a diverse list as the U.S. Chamber of Commerce, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the National Association of Manufacturers, the American Chemistry Council and the Association of Corporate Counsel.