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Harry Cassin
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Andy Spalding
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Jessica Tillipman
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Bill Steinman
Senior Editor

Richard L. Cassin
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Elizabeth K. Spahn
Editor Emeritus

Cody Worthington
Contributing Editor

Julie DiMauro
Contributing Editor

Thomas Fox
Contributing Editor

Marc Alain Bohn
Contributing Editor

Bill Waite
Contributing Editor

Shruti J. Shah
Contributing Editor

Russell A. Stamets
Contributing Editor

Richard Bistrong
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Eric Carlson
Contributing Editor

Protecting The Privilege

Senator Arlen Specter, the ranking Republican member of the Senate Judiciary Committee, has introduced a bill “to provide appropriate protection to attorney-client privileged communications and attorney work product.” S.445 is co-sponsored by Senators Carper (D-DE), Cochran (R-MS), Kerry (D-MA), Landrieu (D-LA) and McCaskill (D-MO). The bill’s Thomas page at the Library of Congress is here.

We’re waiting for the text. But in a post last week, the White Collar Crime Prof Blog (here) said the bill:

Prohibits federal prosecutors and investigators across the executive branch from requesting or conditioning charging decisions on an organization’s reasonable assertion of attorney-client privilege or decision to pay attorneys fees for an employee. This bill emphasizes that the right to counsel is chilled unless the confidential communications between attorneys and their clients are protected by from compelled disclosure. The Department of Justice has changed its rules three times in the past few years, and attorneys and clients need clarity and an unchanging rule.

This is the third try for legislation to protect the attorney-client privilege, following unsuccessful attempts in 2007 (S. 186) and 2008 (S. 3217). Last year’s Senate bill contained these findings:

(1) Justice is served when all parties to litigation are represented by experienced diligent counsel.

(2) Protecting attorney-client privileged communications from compelled disclosure fosters voluntary compliance with the law.

(3) To serve the purpose of the attorney-client privilege, attorneys and clients must have a degree of confidence that they will not be required to disclose privileged communications.

(4) The ability of an organization to have effective compliance programs and to conduct comprehensive internal investigations is enhanced when there is clarity and consistency regarding the attorney-client privilege.

(5) Prosecutors, investigators, enforcement officials, and other officers or employees of Government agencies have been able to, and can continue to, conduct their work while respecting attorney-client and work product protections and the rights of individuals, including seeking and discovering facts crucial to the investigation and prosecution of organizations.

(6) Congress recognized that law enforcement can effectively investigate without attorney-client privileged information when it banned demands by the Attorney General for privileged materials in the Racketeer Influenced and Corrupt Organizations Act. See section 1968(c)(2) of title 18, United States Code.

(7) Despite the existence of numerous investigative tools that do not impact the attorney-client relationship, the Department of Justice and other agencies have increasingly created and implemented policies that tend to undermine the adversarial system of justice, such as encouraging organizations to waive attorney-client privilege and work product protections to avoid indictment or other sanctions.

(8) An indictment can have devastating consequences on an organization, potentially eliminating the ability of the organization to survive post-indictment or to dispute the charges against it at trial.

(9) Waiver demands and related policies of Government agencies are encroaching on the constitutional rights and other legal protections of employees.

(10) As recognized throughout the common law, and specifically in the crime-fraud exception, the attorney-client privilege, work product doctrine, and payment of counsel fees cannot and shall not be used as devices to conceal wrongdoing or to cloak advice on evading the law.

(b) Purpose- It is the purpose of this Act to place on each agency clear and practical limits designed to preserve the attorney-client privilege and work product protections available to an organization and preserve the constitutional rights and other legal protections available to employees of such an organization.

The 2008 bill was supported by 33 former United States Attorneys. A letter they sent to Senator Patrick Leahy (D.,VT), chair of the Judiciary Committee, said, “The widespread practice of requiring waiver has led to the erosion not only of the privilege itself, but also of the constitutional rights of the employees who are caught up, often tangentially, in business investigations.”

Since then, the DOJ (while still under the prior administration) adopted new internal guidance for federal prosecutors covering the attorney-client and attorney work-product privileges. The U.S. Attorney’s Manual at chapter 9-28.710 (here) clarifies that what the government really needs from companies is not a waiver of the privileges but disclosure of relevant facts about their misconduct. But there’s no assurance U.S. Attorneys in the field will follow the new guidance, and it’s not binding on other government agencies that have adopted the DOJ’s practice of requiring waivers.

View our prior posts on attorney-client privilege here.
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