Corporations and Employees May Have Valid Joint Interests
Washington, DC (Aug. 9, 2006) -- In light of yesterday’s report and resolution approved by the American Bar Association’s House of Delegates at its annual meeting in Honolulu, NACDL President Martin Pinales released the following statement:
“The U.S. Department of Justice must heed the August 8 resolution of the American Bar Association condemning its strong-arm tactics for extracting, under extreme duress, cooperation from companies under investigation of wrongdoing. DOJ's high-handed practice of forcing companies to abrogate attorney-client privilege and sacrifice employees' Sixth Amendment right to counsel and right to present a defense is as grossly unfair to the corporation and its shareholders as it is to the company's employees.
“The ABA resolution helps level the playing field when companies and their employees are accused of wrongdoing. The National Association of Criminal Defense Lawyers joins other groups in praising the ABA House of Delegates for its informed and timely condemnation of the unjust and ill-advised tactic of turning companies and employees into adversaries by threatening criminal sanctions against a company at the expense of its employees and their dependants. To paraphrase Justice Sutherland, the federal government’s interest is not in ‘winning’ a conviction, but to be a servant of the law and to see that justice is done.”
The National Association of Criminal Defense Lawyers is the nation’s largest voluntary bar organization dedicated to the defense of individuals and organizations accused of criminal misconduct.
Summary of ABA report and resolution: The particular policies and practices addressed by the Task Force in this Report, as in its previous Report, relate to actions that organizations have been expected to take or to refrain from taking as aspects of cooperation justifying leniency. As discussed below, it is inconsistent with ABA principles, good corporate governance, the role of lawyers in our adversarial system of justice and individual Constitutional rights, for government lawyers to consider any of the following factors in making a determination of whether an organization has been cooperative in the context of a government investigation : (1) that the organization provided counsel to an employee or agreed to pay an employee’s legal fees and expenses; (2) that the organization entered into or continues to operate under a joint defense, information sharing and common interest agreement with an employee or other represented party with whom the organization believes it has a common interest in defending against the investigation; (3) that the organization shared its records or other historical information relating to the matter under investigation with an employee or other represented party; or (4) that the organization chose to retain or otherwise declined to sanction an employee who exercised his or her Fifth Amendment right against self-incrimination in response to a government request for an interview, testimony, or other information.
Martin Pinales may be reached at (513) 721-4876.
For more information on NACDL’s white collar crime project and attorney-client privilege, visit our Web site or call Stephanie Martz, NACDL’s White Collar Crime Project Director, at (202) 872-8600, ext. 227.
Contacts
NACDL Communications Department
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.