in the Fraud Guidelines

For the purpose of determining the amount of loss from economic crime, in 2015 the Sentencing Commission amended the fraud guidelines (U.S.S.G. § 2B1.1) to clarify that “intended loss” means “the pecuniary harm that the defendant purposely sought to inflict” on the victim. The authors discuss two cases, one decided by the Seventh Circuit and one pending in the Third Circuit, that demonstrate how the recent amendments concerning intended loss can benefit white collar defendants.

The testimony of cooperators in white collar cases is created in a perjury factory. The factory produces perjury through (1) multiple interviews with the government, (2) tactical use of the grand jury, (3) selective notetaking by prosecutors and agents, and (4) witness preparation.

In April 2013, the Criminal Justice Section of the American Bar Association assembled a task force to study and evaluate the reforms needed in the sentencing of federal economic crimes. The mission of the task force was not only to identify the areas of weakness in the existing Federal Sentencing Guidelines, but also to draft and propose a better guideline to remedy those weaknesses.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant (in support of petition for rehearing en banc).

Argument: In Lohmeyer, the IRS issued a John Doe summons for the names of all of the clients of the Lohmeyer firm who had sought legal advice concerning off shore tax shelters. The Amicus takes the position that the purpose for which such clients seek legal advice is privileged and thus the identity of those clients who sought the advice is privileged because it would reveal their motive for seeing legal advice.

Letter with the American Civil Liberties Union to members of the U.S. House regarding a proposed amendment to the National Defense Authorization Act (NDAA) for the next fiscal year addressing beneficial ownership reporting (Corporate Transparency Act of 2019, H.R. 2513).

Our proposal addresses a different problem than that addressed by the Hyde Amendment, which it is not intended to modify or replace. Whereas the Hyde Amendment seeks to deter prosecutorial misconduct, and provides that certain of its victims may be reimbursed their attorney fees and expenses, this proposal seeks to reimburse acquitted defendants without regard to the good or bad faith of the prosecutors.

NACDL’s White Collar Crime Policy Department is on the front lines combating new and unnecessary criminal laws and pushing for meaningful criminal justice reform. NACDL white collar advocacy focuses primarily on the problems of:

• Overcriminalization,
• Vicarious corporate criminal liability,
• Disproportionate and insufficiently flexible sentencing.

In support of this effort, NACDL serves as a leader in a politically diverse coalition of bar, non-profit, and business groups who advocate for a sound and just criminal justice system.

The attorney-client privilege is fundamental to fairness and balance in our justice system and essential to corporate compliance regimes. Without reliable privilege protections, executives and other employees will be discouraged from asking difficult questions or seeking guidance regarding the most sensitive situations. Available on this page are a variety of reports, scholarship, and surveys on the decline of the Attorney-Client Privilege and Work-Product Doctrine.  

It is our belief that attorney-client communications, and the confidentiality that fosters those communications, are more important than ever, and laudably serve society’s and our legal system’s public policy goals. In response to increasing concerns expressed by in-house counsel and outside criminal defense counsel, coalition members asked their respective constituencies to complete an online survey: “Is the Attorney-Client Privilege Under Attack?" According to the survey, approximately one-third of the survey respondents had personally experienced some kind of privilege erosion.

NACDL past president Gerald Lefcourt's testimony to the ABA Task Force on Attorney-Client Privilege regarding the effects to individuals during corporate investigations when any privilege is waived.

NACDL Statement on Corporate Attorney-Client Privilege, March 2, 2006.

Letter from Former United States Attorneys to Senator Patrick Leahy in Support of Attorney-Client Privilege Protection Act, June 20, 2008.

Letter from House Judiciary Committee Chairman John Conyers and Crime Subcommittee Chairman Bobby Scott to Attorney General Holder Concerning Attorney-Client Privilege and Work-Product Doctrine, December 16, 2009.

American Bar Association letter filed with the U.S. Sentencing Commission on August 15, 2005 in connection with its decision to add the privilege waiver issue to the list of tentative priorities for the 2005-2006 Sentencing Guidelines amendment cycle.

Comments submitted to the U.S. Sentencing Commission by NACDL's informal Coalition on the Privilege Waiver Amendment to the Federal Sentencing Guidelines regarding priorities in the current (2006) amendment cycle.