Walter Olson has a great op-ed on the Milberg Weiss indictment in today's W$J, with excerpts for nonsubscribers on his blog. Although WO's no fan of MW, he points out what I regard as the one really problematic aspect of this case:
... the Justice Department, following the line laid down by the now-infamous Thompson memorandum, insisted that Milberg waive attorney-client confidentiality if it wanted a favorable plea deal. The business community is in an uproar over the Thompson rules, with the U.S. Chamber of Commerce joining with groups like the ACLU and National Association of Criminal Defense Lawyers to challenge the waiver provisions as unfairly arm-twisting defendants into yielding up their employees' rights.
By threatening to indict the firm, the government is effectively coercing the firm's leadership into waiving important protections for their employees. As the ABA exp lains:
- These government waiver policies weaken the attorney- client privilege between companies and their lawyers and undermine the companies? internal compliance programs, resulting in great harm both to companies and the investing public. Lawyers for companies and other organizations play a key role in helping these entities and their officials to comply with the law and to act in the entity?s best interests. To fulfill this role, lawyers must enjoy the trust and confidence of the managers and the board and must be provided with all relevant information necessary to properly represent the entity. By requiring routine waiver of the attorney-client and work product privileges, these government policies discourage entities from consulting with their lawyers, thereby impeding the lawyers? ability to effectively counsel compliance with the law, and discourage them from conducting internal investigations designed to quickly detect and remedy misconduct. This harms not only companies, but the investing public as well.
- These government waiver policies also unfairly harm employees by infringing on their individual rights. By fostering a system of routine waiver, these policies place the employees of a company or other organization in a very difficult position when their employers ask them to cooperate in an investigation. They can cooperate and risk that their privileged statements will be turned over to the government or they can decline to cooperate and risk their employment. It is fundamentally unfair to force employees to choose between keeping their jobs and preserving their legal rights.
