Justice Under Attack: The Federal Governments Assault On The Attorney-Client Privilege

• Author: Robert J. Anello
• Position: Chairman of the Committee on Professional Responsibility of the Association of the Bar of the City of New York.
• Pages: 1-14

Page 1

Generations before our nation was formed, our founders' forefathers understood that an individual's rights could be protected only if the citizenry had access to lawyers in whom they could confide without intrusion by the crown.¹ Although the concepts of civil and legal rights have evolved over time, the need for informed confidential counsel has remained a tenet of this country's freedom, at least until now. Due to the media's fascination with the criminal process-both real and fictional-Americans are familiar with and take for granted the existence of many rights we associate with our legal system: the freedom from forced confessions; an arrestee's right to receive Miranda warnings; and the right to an informed and zealous advocate in whom a defendant can confide.²

For many years, the sanctity of the attorney-client privilege seemed beyond question. Recently, however, federal prosecutors have mounted a multi-pronged assault against the privilege. Although the traditional role of attorneys has been tested by our government's understandable reaction to the terrorist attacks of September 11, 2001, and the recent disclosures of pervasive corporate wrongdoing, the modern assault on the privilege began well before these events. Our natural and continuing alarm regarding these troubling events should not allow the government to abandon or erode fundamental protections that have proven necessary for the fair administration of our adversarial system and the preservation of individual rights.

This essay will discuss how recent laws, rules, and policies threaten the protections afforded by the attorney-client privilege. Those promulgations include the Attorney General's newly enacted rules authorizing the Bureau of Prisons to eliminate the opportunity for a wide group of detainees-including witnesses and others who have not been convicted of a crime-to have any confidential communications with their lawyers; the Department of Justice's guidelines designed to coerce corporations to abandon the attorney-client privilege; and prosecutors' challenges to joint defense agreements among defense attorneys.

Page 2

The Role of the Attorney-Client Privilege

The Supreme Court has explained that the purpose of our legal system's oldest privilege is "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."³

In criminal cases, defendants and suspects face a myriad of options, including mounting a vigorous defense, pleading guilty, and offering the government cooperation in its prosecution efforts. Attorneys are ethically required to act with dispatch in learning the...