U.S. Chamber asks Congress to invalidate policies that erode attorney-client privilege

WASHINGTON, D.C. - U.S. Chamber of Commerce President and CEO Tom Donohue asked Congress last week to invalidate provisions of the Thompson Memorandum and similar policies at other federal agencies that prevent executives and employees from freely, candidly, and confidentially consulting with their attorneys.

"The policies set forth in the Thompson Memorandum violate fundamental rights regarding attorney client privilege, a cornerstone of our justice system that predates even the Constitution," said Donohue, in testimony before the Senate Judiciary Committee. "Lawmakers must intervene and abolish the provisions that rob executives and employees of their right to candid and confidential consultation with their attorneys."

Under the provisions of Thompson Memorandum, companies under investigation are essentially forced to waive their right to attorney client privilege in order to avoid being deemed uncooperative, a label that drastically increases the chances of an indictment and damages the company's image with the public overall, according to the Chamber. The Thompson Memorandum, issued by the Department of Justice in 2003, set guidelines on whether to indict a corporation and instructs prosecutors to weigh such factors as whether a corporation waives the attorney-client privilege or advances legal fees to senior executives who may be subjects of the investigation.

During his testimony Donohue outlined several inherent flaws in the current policies, noting that an uncertain or unprotected attorney client privilege actually diminishes compliance with the law by restricting communications. Donohue also pointed out that the policies were developed and implemented without any input from either Congress or the judiciary.

"It is up to Congress to fix the flaws in the Thompson Memorandum, either through its oversight of the Department of Justice or by enacting legislation. It's time to lift the threat of incurring a 'death penalty' -- an indictment that can destroy a company -- for exercising fundamental rights to consult freely with legal counsel."

The U.S. Chamber is the world's largest business federation, representing more than three million businesses and organization of every size, sector and region. The Record is owned by the U.S. Chamber.