Tuesday, July 29, 2008

Federal Erosion of Business Civil Liberties: Part 5

In the prior blogs on this topic I have hopefully persuaded you that this is a matter of considerable concern. Although the first reaction of many might have been less than sympathetic, it is clear that business is being faced with the potential for criminal prosecution that does not have the protection of the public good as its objective. Prosecuting authorities fabricate evidence and use it to intimidate the innocent in order to pursue their own agendas.

The exponentially expanding potential liability is growing faster than even the most arduous counsel can master, and the doing so in such an vague and confusing manner that determining a course of conduct to avoid liability is challenging at best, totally impossible at worse.

Civil remedies had been largely ineffective in discouraging abusive conduct and the federal courts, beyond acknowledging improper conduct, have done little to exercise their authority to sanction those who are guilty of even the most egregious conduct.

You might ask what more can happen. The answer is there is more—the development of governmental and judicial policies whose objective is to deprive business the effective representation of counsel. Beginning in 1999 the DOJ began the attack permitting business the right to effective representation of counsel using enforcement policy that encouraged the waiver of the attorney-client and work product privilege. Waiver of these privileges became a gauge of cooperation. Such a policy places a wedge between in-house counsel and their client who can never be sure whether waiver of the privilege will expose them to having their in-house counsel become an instrument that is adverse to their interests, causing company employees to be suspicious of in-house counsel and less than candid in their conversation.

The courts have also been a part of this problem by expanding the Crime –Fraud exception in a manner that threatened the exposure of counsel’s conversations with his clients in an environment where advice of counsel had become critically important. I had the privilege of writing the Introduction to a WLF monograph on the topic written by the Honorable Richard Thornburgh, “Attorney-Client Privilege and ‘Crime-Fraud’ Exception: The Erosion of Business Privacy”, Sept 1999.

What can you do? First, get the WLF monograph available from WLF, at www.wlf.org. It is far more comprehensive than my brief blogs and has detailed recommendations for change. Second, support WLF’s efforts. Third, support ACC’s efforts; it has also been in the fore front of the efforts to confront this challenge.

Protecting business rights is as important as protecting individual rights. When prosecuting authorities and the judiciary lose sight of the proper role of criminal enforcement with respect to business activities, it is only the naïve who believe that individuals will be immune from similar conduct.


Steve Bokat said...

Larry has identified an area that should be of great concern to the corporate community. It bears pointing out that a number of public policy groups have made significant efforts to convince the Federal Government of the error of its ways. Working together, ACC, the U.S. Chamber of Commerce (my prior employer), the American Bar Association, the National Association of Defense Counsel, and others have lobbied Congress to legislatively reverse the Justice Department's attempts to undercut the attorney client privilege. The Chamber's litigation arm, has filed a number of amicus curiae briefs alone and with other groups trying to convince the courts not to undercut the reach of the privilege. A list of cases with links to the briefs follows:

Qwest Communications International


U.S. v. Stein, et al.

U.S. v. Stein

Akzo Nobel Chemicals Ltd. & Ackros Chemicals v. Commission


U.S. v. Textron Inc. And Subsidiaries


sexy said...