FDCC Board Supports ABA Task Force Resolution on Attorney Client Privilege

June 21, 2005

The Board of Directors of the Federation of Defense & Corporate Counsel (FDCC) has unanimously endorsed the resolution proposed to the American Bar Association House of Delegates by its Task Force on the Attorney-Client Privilege. That resolution, set out in full below, (i) strongly supports the preservation of the attorney-client privilege and work-product doctrine as essential to the proper functioning of the judicial system, (ii) recognizes that waiver of the attorney-client privilege and work-product doctrine by the holders of those protections should occur only under circumstances that do not erode those protections, and (iii) opposes government policies or practices that fail to recognize the importance of those privileges.

The FDCC is an international organization of 1300 members comprised of experienced attorneys in private practice, corporate counsel and insurance claims executives, who are actively engaged in the administration and defense of civil litigation. Part of the Federation mission is to "work towards the fair and balanced dispensing of justice" and the word "justice" joins "knowledge" and "justice" in the organization's motto.

Federation President Jean Lawler expressed the Board's sentiments on the adoption of the Resolution:

Federation members are keenly concerned about the erosion of the attorney-client-privilege and believe that the preservation of that privilege and the support of the work-product doctrine are critical elements of the civil justice system. An attempt to try to develop limited waivers of those privileges begins a journey down a slippery slope that can destroy these historical protections.

The Federation joins those who seek to fight and prevent fraud and ethical attorneys who learn of questionable behavior on the part of their clients and are in the position to counsel against it. If discussions between attorney and client were subject to disclosure because of the erosion of the privilege, candid discussions where fraud-prevention could be accomplished may never occur.

In civil litigation, candid discussions between and among counsel, insureds and insurers are critical to provide for a civil defendant's representation and protection. Just as injured parties are guaranteed the right to candid communications with their counsel and those who are working on their behalf, the privileges and protections must be preserved for those who are defending claims against them.

The Federation urges other organizations and individuals to join the FDCC and the ABA's anticipated support of these abiding principles.


TASK FORCE ON THE ATTORNEY-CLIENT PRIVILEGE RESOLUTION

THESE RESOLUTIONS ARE FOR DISCUSSION PURPOSES ONLY AND HAVE NOT BEEN APPROVED BY THE TASK FORCE ON THE ATTORNEY-CLIENT PRIVILEGE, THE HOUSE OF DELEGATES OR THE BOARD OF GOVERNORS OF THE AMERICAN BAR ASSOCIATION. ACCORDINGLY, THEY SHOULD NOT BE CONSIDERED AS REPRESENTING THE POLICY OF THE AMERICAN BAR ASSOCIATION.

RESOLVED, that the American Bar Association strongly supports the preservation of the attorney-client privilege and work product doctrine as essential to maintaining the confidential relationship between client and attorney required to encourage clients to discuss their legal matters fully and candidly with their counsel so as to (1) promote compliance with law through effective counseling, (2) assure effective advocacy for the client, (3) ensure access to justice and (4) promote the proper and efficient functioning of the American justice system; and

FURTHER RESOLVED, that the American Bar Association believes that, although the protections arising from the attorney-client privilege and work product doctrine may be voluntarily waived in particular instances by the holders of the protections, waiver should occur only under circumstances that do not erode those protections; and

FURTHER RESOLVED, the American Bar Association opposes policies, practices and procedures of governmental agencies that have the effect of eroding the attorney-client privilege and work product doctrine and favors policies, practices and procedures that recognize the value of those protections.

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