CORPORATE CRIME REPORTER
Florida
Law Professor Seigel in Feud with ABA Over Corporate Waiver
21 Corporate Crime Reporter 12, March 15, 2007
University of Florida Law Professor Michael Seigel is feuding with the American
Bar Association (ABA).
It started last month, when Seigel, a former federal prosecutor, penned an opinion piece for the Washington Post titled “Corporate America Fights Back.”
In it, Seigel claims that big business, in an effort to “derail the Justice Department's efforts to maintain a heightened level of white-collar criminal enforcement,” enlisted the help of corporate lawyers and the American Bar Association.
“Their strategy was to mount an all-out offensive against a seemingly obscure trend – the Justice Department's increasing insistence that corporations waive their attorney-client privilege as part of their cooperation with government investigators,” Seigel wrote.
Seigel says that the ABA, which has been vocal in its campaign to defang the Justice Department, is overstating its case.
“The government does not coerce corporations to waive their attorney-client privilege any more than it coerces drug dealers to waive their Fifth Amendment privilege against self-incrimination when they agree to testify,” Seigel wrote.
“Moreover, the attorney-client privilege is not an end unto itself but a means to an end. Its main purpose is to encourage individuals to be candid with their lawyers.”
In an unpublished letter sent to the Washington Post this week, ABA President Karen Mathis rips into Seigel for ignoring the facts of the case. Mathis says that “business did not come to the ABA seeking cover to oppose federal investigations” but it was the other way around.
The ABA took the initiative, she says.
In interview, Seigel told Corporate Crime Reporter that the ABA “just doesn’t give the prosecution’s side of the argument its fair due.”
“And that upsets me,” Seigel said. “I know how influential the ABA is in shaping public policy and in how lawyers think about the law. Back during the savings and loan crisis, they would almost always question whether or not the government was overreaching when it prosecuted a law firm or corrupt lawyers, or big corporations given advice by corrupt lawyers.”
On the waiver of corporate attorney client privilege, Seigel believes that the amended McNulty memo – which requires field prosecutors to get approval of waiver requests from their supervisors at Main Justice – is a good middle ground.
“It
actually has annoyed me that people like Karen Mathis of the American Bar Association
are so quick to say – this has no impact, we need legislation,”
Seigel said. “They are denigrating the entire operation of the Department
of Justice.”
The ABA is supporting legislation by Senator Arlen Specter (R-Pennsylvania)
that Seigel believes will defang the Justice Department’s war on corporate
crime.
He says the Specter bill would result in a “significant slowdown of white-collar criminal prosecutions -- exactly what the business lobby wants.”
Seigel says that the ABA was most upset with him when he wrote that the business lobby and the corporate lawyers were “treating attorney-client privilege as if it were a sacrosanct American institution, akin to freedom of speech.”
He points out that corporations don’t have Fifth Amendment rights and that the privilege is not protected by the U.S. Constitution.
(For a complete transcript of the Interview with Michael Seigel, see 21 Corporate Crime Reporter 12, March 19, 2007, print edition only.)
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