Board Resolution ~ 02/22/2003

Regarding the Attorney-Client Privilege

Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Regarding the Attorney-Client Privilege 

Cancun, Mexico

February 22, 2003

WHEREAS the officers, directors, and members of the National Association of Criminal Defense Lawyers have dedicated their professional lives to implementing the constitutional guarantee that an accused receive the effective assistance of counsel for his or her defense;

WHEREAS for centuries the attorney-client privilege has been firmly grounded in the recognition that legal consultation serves the public interest;

WHEREAS the Supreme Court has stated that the purpose of the privilege is to encourage full and frank communications between attorneys and their clients and thereby promote broader public interest in the observance of law and the administration of Justice;

WHEREAS the attorney-client privilege may well be the pivotal element of the lawyer’s professional function in this country;

WHEREAS while the attorney-client privilege has long been a pillar of the rule of law in this country, it has become a target of federal prosecutors and regulators, who apparently misperceive or choose to disregard its fundamental role in our system of justice;

WHEREAS the work product doctrine directly promotes the adversary system by enabling attorneys to prepare their cases without fear that their work product will be used against their clients;

WHEREAS the policy of the United States Department of Justice, as expressed in its standards for the federal prosecution of corporations (initially circulated as an internal memorandum by then-Deputy Attorney General Eric Holder in June, 1999, and known colloquially as the Holder Memo Standards), is to encourage federal prosecutors to seek waivers of the attorney-client privilege and work product privilege as a condition for not being charged with a crime;

WHEREAS federal prosecutors and regulators increasingly rely on counsel for the defense to build the government’s case by insisting that the individual or corporate defendant waive the attorney-client privilege and turn over both client-lawyer communications and the work product of the lawyer;

THEREFORE BE IT RESOLVED that the National Association of Criminal Defense Lawyers recognizes that the attorney-client privilege and the work product doctrine – whether invoked by a corporation or an individual – are essential to the due administration of our criminal justice system;

BE IT FURTHER RESOLVED that the National Association of Criminal Defense Lawyers opposes the ongoing efforts to erode the attorney-client privilege and work product doctrine in criminal investigations and prosecutions in a manner that undermines the fair administration of justice;

BE IT FURTHER RESOLVED that the National Association of Criminal Defense Lawyers opposes any effort to change the role of the criminal defense lawyer from that of the client’s confidential advisor and advocate in dealings with the government into a conduit of information between the client and the government, thereby reducing the ability of defense counsel to provide effective assistance to the client;

BE IT FURTHER RESOLVED that the National Association of Criminal Defense Lawyers -- mindful of the laudable efforts to eliminate terrorism and corporate misdeeds -- shall urge the government of the United States to revise its guidelines and standards to reflect the central importance of these protections and to restore the proper balance that once existed between the government’s need to detect wrongdoing and the client’s need to seek and obtain confidential legal advice. 

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