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Lobbies upset with Justice Department investigation tactics took their long-standing disgruntlement to Capitol Hill on March 7, arguing that government agencies are overstepping boundaries in their efforts to blunt white-collar crime. Disparate groups including the American Civil Liberties Union, the National Association of Manufacturers, and the U.S. Chamber of Commerce teamed up at a House judiciary subcommittee hearing to argue that government agencies are eroding attorney-client privileges with overzealous prosecutors in the post-Sarbanes-Oxley era. The coalition wants Congress to modify the U.S. Sentencing Commission guideline on privacy waivers, which currently says prosecutors can ask targets to waive the attorney-client privilege whenever the government deems it necessary. The groups support the commission’s recently proposed amendment that would remove the waiver language from its guidelines, arguing that the current wording leaves companies that do not comply with waiver requests at risk of being termed uncooperative and facing harsher sentences if convicted. The coalition pointed to the newly minted survey results on the decline of attorney-client privilege from the Association of Corporate Counsel, which found nearly 75 percent of the 4,700 of its inside and outside counsel members surveyed believe that it’s common for government agencies to expect that companies under investigation waive attorney-client privileges. “The results of the second survey do give support to our contentions and directly attack the government’s allegations that these privacy erosions don’t take place,” says Susan Hackett, ACC vice president and general counsel.
Anna Palmer can be contacted at [email protected]. Emma Schwartz can be contacted at [email protected]

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