4/12/06

The State Bar of Michigan has created a task force to make recommendations concerning the compelled or coerced waiver of attorney-client privilege. The move comes in response to recent developments in federal criminal law and practice. The United States Sentencing Commission has promulgated a guideline that would permit courts to consider a business's refusal to waive its privilege in imposing a sentence for a criminal conviction. Also, federal prosecutors have received instructions to develop and implement procedures addressing waivers by businesses of their attorney-client privilege in order to avoid criminal prosecution or receive more favorable sentencing.

The President of the State Bar, Thomas W. Cranmer explained that, "the purpose of the group is to study and make recommendations to the State Bar on developing principles in the law of attorney-client privilege and compelled waivers of the privilege."

The ten-member task force, which will be co-chaired by Diane L. Akers and John W. Allen, will undertake the following:

• Raise awareness of the issues by informing SBM members and providing opportunities for them to become more involved in the work of the task force.

• Gather information about lawyers and their clients' experiences with compelled waivers. Presently, there are no statistics about how frequently businesses are being asked to waive the privilege, how frequently they are agreeing to do so, and what happens if they refuse.

• Ensure that there are opportunities for lawyers to learn how to anticipate and avoid problems in attorney-client communications.

• Present a written report to the Representative Assembly summarizing its findings and recommendations for the RA's consideration.

• Coordinate with other similar bodies nationwide and make recommendations to increase contact with United States Attorneys to present the perspectives of businesses and business lawyers.

Diane Akers, a partner in the Detroit office of Bodman LLP, represents the State Bar Business Law Section. John W. Allen, a partner at Varnum Riddering Schmidt Howlett LLP in Kalamazoo, chairs the State Bar Grievance Committee, and has served as an ABA section liaison to the ABA Task Force on Attorney-Client Privilege. Ms. Akers and Mr. Allen also serve as SBM co-liaisons to the ABA Task Force. Other committee members are:

Samuel C. Damren, a partner in the Detroit office of Dykema Gossett PLLC.

Stephen L. Hiyama, assistant U.S. attorney, Eastern District of Michigan.

Steven C. Kohl, a partner in the Southfield office of Warner Norcross and Judd LLP, and a member of the State Bar’s Environmental Law Section.

Martin P. Krohner, a private practitioner, a member of the State Bar’s Criminal Law Section, and co-chair of the State Bar’s Criminal Jurisprudence and Practice Committee.

Robert A. Maxwell, chief legal officer of Logicalis, Inc. and member of the Board of Directors of the Michigan Chapter of the Association of Corporate Counsel.

Michael W. Puerner, Vice President and general counsel of Hastings Mutual Insurance Company, and chair of the State Bar’s U.S. Courts Committee.

Steven M. Ribiat, a shareholder in the Bloomfield Hills office of Butzel Long.

Eric J. Wexler, general counsel of Great Lakes Health Plan, Inc., and member of the State Bar’s Health Care Law Section council.

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