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They make unlikely bedfellows, but last Friday, legal groups on the left and right came together with a unified message: Attorney-client privilege is under attack. The setting was the headquarters of the U.S. Chamber of Commerce, which along with the Association of Corporate Counsel, the American Civil Liberties Union, and the National Association of Criminal Defense Lawyers, is gearing up for a lobbying effort against the recently revised changes to the federal sentencing guidelines. They are concerned that investigators with the Justice Department and the Securities and Exchange Commission increasingly reward companies that agree to waive privileged communications with their lawyers. In so doing, the government is undermining a long-standing tenet of the U.S. justice system, the right to counsel. The practice, which became more common during the wave of corporate scandals that followed Enron’s collapse, effectively forces companies to disclose confidential information they share with their attorneys, the groups maintain. That makes it more difficult for lawyers to learn facts and give sound advice. “A lack of candid communication between executives and their lawyers may lead to more corporate failure,” says Fred Kerbs of the ACC. That outcome, says Caroline Fredrickson, legislative director of the ACLU, leaves a lingering “worry that precedents in the corporate arena could turn into problems when individuals are concerned.”
Emma Schwartz can be contacted at [email protected].

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