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State bar associations are jumping into the roiling debate over the attorney-client privilege-waiver issue triggered by the U.S. Department of Justice’s Thompson Memorandum. Several states have recently convened task forces to fight the 2003 directive penned by former Deputy Attorney General Larry Thompson, which among other things instructs prosecutors to trade leniency for waivers of the attorney-client privilege during corporate investigations. The states are lobbying the federal government to change Justice Department policies and practices that give incentives to corporate defendants who waive attorney-client privileges and pressures companies not to pay the legal fees of current or former employees facing corporate criminal investigations. In some cases, states are mulling changes to their own rules of professional conduct to sidestep Thompson-style waivers. New task forces in Florida, Illinois and Michigan join ongoing advocacy efforts in Arkansas, Maryland, New York and Boston. Slow in coming? Samuel Damren, a litigator in the Detroit office of Dykema Gossett, heads Michigan’s task force. He hopes that his group will recommend changing the state’s rules of professional conduct to prohibit government attorneys practicing in Michigan from requesting that companies waive their attorney-client privileges to prove they are cooperating with the government probe. Damren acknowledges that change would be slow: the State Bar of Michigan’s Representative Assembly would vote on any task force proposals and make recommendations to the state’s Supreme Court. Damren said his approach is part of the legal community’s pushback to the perceived “culture of waiver” that many attorneys worry is eroding attorney-client privilege. “If the prosecutors and regulators aren’t going to change the rules, it’s not just in their hands, it’s in the hands of the bar,” Damren said. An Arkansas Bar Association task force is recommending that its House of Delegates ask the Arkansas Supreme Court to adopt rule changes allowing for selective waiver, or disclosure of some information to a government agency without revoking the attorney-client privilege, and barring discovery of attorney communications with experts. The 72,000-member New York State Bar Association is informally discussing whether to push for changes to the rules of professional conduct to curtail waivers. But state bar President Mark H. Alcott said he’s unsure if such a rule would work in practice, since the client ultimately has the right to waive and could succumb to pressure from the government. The bar’s chief strategy is lobbying the federal government to change policies that pressure companies to waive attorney-client privilege, said Alcott a senior litigation partner with New York’s Paul, Weiss, Rifkind, Wharton & Garrison. Florida Bar President Henry M. Coxe III of Bedell, Dittmar, DeVault, Pillans & Coxe in Jacksonville, was inspired by hearing about the New York bar efforts at an American Bar Association gathering. “It struck me that Florida wasn’t in that mix and we should be,” he said. The Florida Bar task force, which was formed in September, is looking into the extent of compelled or coerced waivers in Florida, and the circumstances under which waivers were granted. But Coxe said it’s too early to project what recommendations might emerge. In October, Illinois followed Florida’s lead. A special committee of the Illinois State Bar Association met for the first time on Oct. 30, in response to the American Bar Association’s appeal to state bar groups to examine the issue, said Chairman J. Timothy Eaton of Chicago-based Shefsky & Froelich. The committee has yet to decide on its scope, but it will inspect the waiver-seeking activities of the state’s attorney general and its impact on the local bar. Recommending that the Illinois Supreme Court change the rules of professional conduct is another possibility, Eaton said. In June, the Boston Bar Association penned a letter to its local U.S. attorney about the office’s written waiver-review process. The bar association requested that a supervisor in the U.S. attorney’s office approve all prosecutor’s requests for waiver of the corporate attorney-client privilege or work-product protection and that the office only grant limited waivers.

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