A study committee of the Illinois State Bar Association met Oct. 30 and Dec. 7 to review challenges to attorney-client and work product privileges, and to develop responses to Department of Justice pressures on corporations.

While appearing to encourage cooperation by corporate counsels during investigations, federal policies threaten to undermine corporate management and compliance programs. Unreasonable risks are created for company officials and employees.

The ISBA Special Committee on Attorney Client Privilege, chaired by past president Timothy Eaton of Shefsky & Froelich, Chicago, is just one of several related state bar initiatives. Others are under way by task forces in Florida, Michigan, New York, Massachusetts, Maryland and Arkansas.

At issue is a 2003 directive by former deputy attorney general Larry D. Thompson that suggests waivers of the attorney-client privilege may be traded for leniency as an incentive in corporate investigations.

A Washington, D.C., attorney told members of the Lake County Bar Association on Sept. 12 that criminal defense lawyers are being viewed as sources of information while clients are coerced to waive privileges in return for hopes of leniency.

Saul M. Pilchen, a partner in Skadden, Arps, Slate, Meagher & Flom, told the LCBA that journalists, as well as defense lawyers, are becoming de facto deputies of the Justice Department.

Keynote speaker for the association's annual Volunteer Lawyers Program pro bono awards presentation, Pilchen is co-counsel to New York Times reporter Judith Miller, who spent 85 days in prison for protecting the confidentiality of a news source.

Having a client in jail is the saddest experience for a white-collar criminal defense attorney, he said, noting that journalists are being pitted against the government by a proliferation of subpenas.

On the same day that Pilchen spoke in Gurnee, members of the U.S. Senate Judiciary Committee were blasting the controversial privilege waiver policy as potentially unconstitutional.

Sen. Arlen Spector, the committee chair, said the right of confidential communication between a client and an attorney is fundamental to the justice system.

“I don't think anybody should get credit for waiving a constitutional right, or a demerit for asserting a constitutional right,” he told Justice Department officials.

The American Bar Association House of Delegates adopted two resolutions on attorney-client and work product privileges during its annual meeting in August in Hawaii.

The ABA House supported preservation of the privileges in connection with audits of corporate financial statements, and urged that appropriate steps be taken by agencies to ensure that protections are observed.

The House also urged state and federal courts to adopt consistent rules on how courts and counsel should resolve issues involving inadvertent disclosure of protected materials.

Delegates opposed government policies and practices that effectively erode rights of current and former officials and employees, as prosecutors determine whether an organization has been cooperative in the context of an investigation.