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Sunday, September 20, 2009

No Privilege for You: Headline-Seeking Congressman Pushes for Investigation Targets to Waive Attorney-Client Privilege

There will be an article in the Monday 9-21-09 New York Times (click here) on how a United States congressman is demanding that certain Bank of America executives waive their attorney-client privilege with respect to matters pertaining to the BoA acquisition of Merrill Lynch last fall/winter.   This acquisition has previously received attention and criticism, including on the Crime, Politics and Policy blog, for the billions in undisclosed losses and bonuses to Merrill executives which suddenly became disclosed just days after a shareholder vote to approve the acquisition. 

There are other reports that BoA and / or its executives (and possibly others known and unknown) are "under investigation" -- whether this means civil and/or criminal cannot be ascertained at this time -- with respect to this matter.

It is interesting to note the implicit criticism of the assertion (before it is asserted, by the way, in this case) of the attorney-client privilege as being among the refuges of the guilty, the miscreant class, whatever you what to call them.    Perhaps it is good, from a public policy point of view, that the "presumption of innocence" in our Constitution is revealed as little more than empty words.   In reality, these executives are going to be found "guilty" in some sort of court of public opinion egged on by headline-seeking, politically-ambitious Congressmen playing to "the street."

In this situation, or in any situation involving a complex set of facts, it is important to have an investigation that is determined to focus on "the facts."   Extraneous influences should be most unwelcome as they can and often do contaminate the process.    Public outrage over government bailouts (e.g., TARP), failing banks and other issues should not be used as a cover to blundgeon corporate executives -- some of whom may be very, very innocent -- into waiving their constitutional rights under pressure from either investigators or public officeholders.

This is looking like a lynch mob where the "verdict:" has been preordained.   In such a situation, it would not be surprising for the counsel to any corporate executives "in the mix" to completely assert the attorney-client privilege out of nothing more than an abundance of caution.   In a highly-charged atmosphere, such as what exists now, it is possible that there is no "explanation" that is or could be "exculpatory" -- meaning that the members of the "court of public opinion" have for better or worse made their decision and will fit the "evidence" -- whatever they decide to accept -- to fit their "story" or version of events that comport with their preordained agenda.   Such executives should be exercising extreme caution and should avoid any temptation to "talk their way out of trouble."   Admittedly, their reputation may take a beating, but in this situation as it is shaping up, what truly matters is their future.

Some "targets" (according to the legal parlance) may be tempted to talk out of a misguided belief that there is actually a chance to convince their inquisitors of their innocence.   This may be a huge mistake.   Someone who has preordained an opinion about a topic before hearing both sides or considering all relevant evidence is someone who likely should be shunned and ignored -- and much more so if one is under "investigation" by the same type of person.    There are some corporate and political clients who believe -- amazingly -- that their words can part the Red Sea.   These people are delusional and often their own worst enemy.   Some clients should develop the intellectual maturity to realize that there are times when they will be confronted with judgers of their character or actions, whether they be actual judges in a court of law, prosecutors, investigators, private civil class action plaintiffs' attorneys or the press, and they need to develop the internal intestinal fortitude to be confident in their own position and simply wait until they get before an impartial trier of fact.   Admittedly, there are reputational consequences to this approach...but the alternatives are adverse financial consequences and legal jeopardy consequences which outweigh a reputational concern.

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