A popular, effective and unethical prosecutorial practice among federal investigators is to coerce businesses and individuals into waiving the attorney client privilege by threatening indictments. The privilege of having absolutely private communications with one’s attorneys in order to get legal advice is a linchpin of the justice system and each citizen’s access to fair treatment under the law. Forcing individuals to give the privilege up under threat of prosecution is and has always been wrong; after all, a waiver made under a threat is hardly “voluntary.” U.S. Rep. Bobby Scott, (D-Va.), has now introduced H.R. 4326, complementing legislation filed in the Senate earlier this year by U.S. Sen. Arlen Specter, to bar this practice.
Good.
The bill states that federal investigators, in both criminal and civil matters, may not “demand, request, or condition treatment on the disclosure by an organization, or person affiliated with that organization, of any communication protected by the attorney-client privilege or any attorney work product.” It also prohibits the federal government from using waiver of the privilege as a basis for determining whether to bring charges or deciding whether someone is cooperating with the government.
Justice Department guidelines already prohibit prosecutors from treating an individual’s use of the privilege as a lack of cooperation, but other investigatory agencies, such as the S.E.C. and the E.P.A., have no such restrictions. Legal Blog Watch points out that it was none other than current Attorney General Eric Holder, when he was in the Clinton Administration, who wanted to allow Justice Department investigators to pressure subjects into waivers.
Somehow this never was mentioned during Holder’s confirmation hearing. Mark Rich’s pardon, the Khalid Sheikh Mohammed show trial in New York…it is remarkable how often Holder seems to be on the wrong side of these ethical issues. But we digress.
Federal, state, and local prosecutors have been given remarkable leeway in their methods for a long, long time. A series of botched or over-zealous prosecutions, like that of Sen. Ted Stevens in Alaska and the infamous Duke lacrosse rape case, have made it clear that too many prosecutors are willing to abuse basic principles of fairness in order to get another notch in their belts. In other words, they have abused our trust.
This is an ethical bill to put the brakes on an unethical practice.
Ethics Alarms 
So saying “I want a lawyer” was on its way to obstruction of justice??? I always thought that requesting that your attorney be present a pretty simple Constitutional right, and could not be used bring pressure to bear on you, e.g., “it will be much worse for you if you bring lawyers into this.” So it wasn’t just local law enforcement, or for drama’s sake, that the police and DAs on “Law and Order” did this all the time… it was a reality show, for God’s sake.
Eric Holder has never passed the smell test, but he’s getting stinkier all the time. Love having HIM still in office… Good for Arlen Specter and Bobby Scott!
No, not “I want a lawyer”, but agreeing that your lawyer would have to reveal to the feds everything you told him or her, no matter how incriminating.
I have been on the business end of this kind of thing, and I applaud this legislation, so I can vouch for your representation. Witnesses who would otherwise never be included in the prosecution may be threatened with inclusion for failing to surrender their right to representation. I have seen it first hand.
Too long have prosecutors, federal and otherwise, been allowed to rationalize obvious unethical behavior as an ethical dilemma between justice and encroaching in a “minor way” on Constitutional rights. The slippery slope has become paved with greased Teflon.
Thanks for bringing this to our attention, Jack. I wish every American could make themselves aware of some of the unethical things done by our governments in the pursuit of “justice.” But lest I seem to apply this with too broad a brush, this tactic is not universally employed among prosecutors — many have serious reservations about this procedure, and some refuse to do it.
Being a powerful advocate for a client, as prosecutors are duty-bound to be for the governments they represent, should no more allow them to ignore ethical behavior in the name of their case, no matter how strong or convincing to their team, than the high-powered defense attorneys who acquit the likes of O.J. Simpson.
Justice in our legal can never be done unethically, in my opinion — the result may wind up correct (or may not, a la Stevens), but a fair process is what is guaranteed by our Constitution, not a fair outcome.
For too long, outcome has ruled the roost among prosecutors. This provision won’t stop it, but every small step is a worthy one.