Corporate America Fights Back
This op-ed appeared February 26 in The Washington Post.
By: Michael Seigel
Michael Seigel is a professor at the University of Florida’s Levin College of Law. He serves on the Attorney-Client Privilege Task Force, which is examining whether the Florida Bar should take a position on this matter. The views expressed here are his own.
Last time the public was tuned in, the Justice Department was vigorously prosecuting corporate giants such as Enron for massive frauds committed during the waning days of the stock bubble. Assisted by the Sarbanes-Oxley Act, government lawyers were racking up victories in the battle against white-collar crime. One recent highlight was the October sentencing of former Enron chief executive Jeffrey Skilling to 24 years in prison.
Now that the public’s attention has shifted to matters such as Iraq, however, corporate America has launched a counterattack. Its goal is to derail the Justice Department’s efforts to maintain a heightened level of white-collar criminal enforcement. Its success thus far starkly illustrates how power and money influence our criminal justice system.
Big business, represented primarily by the U.S. Chamber of Commerce, could not attack white-collar criminal enforcement head-on. Instead, it enlisted the aid of its lawyers, including the American Bar Association and the Association of Corporate Counsel, in a more oblique assault. Their strategy was to mount an all-out offensive against a seemingly obscure trend: the Justice Department’s increasing insistence that corporations waive their attorney-client privilege as part of their cooperation with government investigators.
Through experience, government lawyers have learned that the efficiency of white-collar criminal prosecution can be significantly improved when companies facing indictment cooperate and provide relevant information. This way, prosecutors can get to the bottom of complex criminality and promptly indict those responsible. However, unlike an ordinary criminal who cooperates by telling what he knows, a corporation only “knows” what its employees tell it. Often, information relevant to a prosecution has been gathered by the corporation’s counsel. Therefore, to cooperate, the corporation must waive its attorney-client privilege.
In a January 2003 document known as the “Thompson Memorandum,” Justice told its prosecutors to consider a corporation’s willingness to waive its attorney-client privilege in determining whether it ought to be indicted. This is where big business and its lawyers aimed their attack. Treating attorney-client privilege as if it were a sacrosanct American institution, akin to freedom of speech, they claimed that Justice was unfairly using its tremendous power to coerce corporations into privilege waivers. The resultant erosion of the privilege would be catastrophic, they contended. This tactic even garnered the support of the American Civil Liberties Union, and together the various lobbying groups formed the Coalition to Preserve the Attorney-Client Privilege.
The coalition’s claims are hugely overstated. The government does not “coerce” corporations to waive their attorney-client privilege any more than it “coerces” drug dealers to waive their Fifth Amendment privilege against self-incrimination when they agree to testify. Moreover, the attorney-client privilege is not an end unto itself but a means to an end. Its main purpose is to encourage individuals to be candid with their lawyers.
The coalition says that the prospect of a privilege waiver will cause corporate employees and officers to clam up, eviscerating internal investigations and compliance programs and resulting in more corporate crime. But employees of corporations have known since the Supreme Court’s 1981 decision in Upjohn Co. v. U.S. that when they speak to corporate counsel, the decision of whether to keep the conversation confidential resides with the corporation, not with them. The necessity and complexity of legal compliance leads most employees to talk to counsel nonetheless. Little indicates that the recent increase in privilege waivers has upset this balance.
So the Justice Department simply carried on. But it underestimated the power of the forces allied against it. Through intense lobbying efforts, the coalition persuaded Congress to conduct hearings. The same politicians who expressed outrage at corporate fraud a few years back now expressed outrage at the government’s vigorous pursuit of it. Eventually, Sen. Arlen Specter (R-Pa.) introduced a bill that would prohibit federal prosecutors from seeking privilege waivers or considering a corporation’s willingness to waive privilege voluntarily when evaluating its cooperation. Realizing that it was in danger of losing, Justice issued the “McNulty Memorandum” on Dec. 12. It reins in prosecutors’ ability to request privilege waivers by requiring high-level supervisory approval.
But big business smells blood. Its reaction to the McNulty memo has been negative, and its goal continues to be the outright prohibition of waiver requests. Through reintroduction of the Specter bill, it is pressing its legislative “fix” in the new Congress, and the newly empowered Democrats — eager for lobbyists’ money — are likely to be as responsive as their Republican predecessors. The result of a waiver prohibition, of course, would be a significant slowdown of white-collar criminal prosecutions — exactly what the business lobby wants. And the losers, once again, would be the victims of white-collar crime: the American people.