08.28.08

Comments On The Department Of Justice’s New Policy Regarding The Corporate Attorney-Client Privilege

I am pleased that the Department of Justice has finally announced a significant and welcome change to its policy regarding requests for waiver of the corporate attorney-client privilege.  For years, I have emphad the importance of the attorney-client privilege.  I have said that the Department must take all necessary steps to correct the abuses documented earlier in this administration and to address lingering concerns.  I am glad that at long last Judge Filip and others at the Department have responded to these calls with substantive improvements to this important policy.

The new policy ensures that the Department will evaluate corporate cooperation based on the information provided, rather than whether or not a corporation waived the privilege.  The new policy also limits the types of privileged information that may be requested and makes clear that the Department cannot consider whether a corporation covered employee legal expenses or sanctioned its employees.  These are positive developments.

While the policy is that of the Department of Justice, the documented instances of abuse were in cases handled by the Department, and the Justice Department, of course, takes the lead in prosecuting all criminal cases.  It has always set the tone and the standard for investigations of corporate wrongdoing.  I look forward to the Department making real progress on this issue, and I hope that other federal agencies working with the Justice Department on corporate investigations will wholeheartedly embrace this new approach.

I will more carefully study the new policy and will consult with Senator Specter and other interested members of the Committee.  We will continue to be vigilant on this issue, and ensure that the Department does not return to the abusive policies and practices of the past.

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