ABA Presidential Task Force on the Attorney Client Privilege

In October, the ABA created a Presidential Task Force on the Attorney-Client Privilege. The Task Foce will

examine the purposes behind the privilege and its exceptions, the circumstances in which competing objectives are currently being asserted by governmental agencies and others to override the privilege, and the extent to which the correct balance is being struck between these competing objectives and the important policies underlying the privilege.

Why now? The Task Force's mission statement notes:

Among recent actions of the federal government affecting the privilege . . . are the U.S. Sentencing Commission's proposed amendments to the federal sentencing guidelines for corporations and other entities. These amendments include as a new factor in determining whether the entity has fully cooperated, and hence is entitled to leniency, whether the entity and its employees waive attorney–client privilege and work product protections. In addition, the U.S. Justice Department and the Securities and Exchange Commission, as well as other federal agencies, have also recently adopted policies requiring waiver of the privilege as a condition for cooperation. Moreover, while some federal agencies have entered into confidentiality agreements with the parties providing the agencies with privileged information, their effectiveness in protecting that information from further disclosure is in doubt.

The Task Force held a public hearing in Salt Lake City in February. A second hearing will be held in New York City this week (April 21).

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