HR 3013
11-13-07, House Agreed to Bill by Voice Vote
Referred to Senate Committee
on the Judiciary
110th CONGRESS
1st Session
H. R. 3013
IN THE SENATE OF THE UNITED STATES
November 14, 2007
Received; read twice and referred to the Committee on the Judiciary
AN ACT
To provide appropriate protection to attorney-client privileged communications
and attorney work product.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Attorney-Client Privilege Protection Act of
2007'.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings- Congress finds the following:
(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) Despite the existence of these legitimate tools, the Department of Justice
and other agencies have increasingly employed tactics that 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.
(7) 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.
(8) Waiver demands and other tactics of Government agencies are encroaching
on the constitutional rights and other legal protections of employees.
(9) The attorney-client privilege, work product doctrine, and payment of
counsel fees 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.
SEC. 3. DISCLOSURE OF ATTORNEY-CLIENT PRIVILEGE OR ADVANCEMENT OF COUNSEL
FEES AS ELEMENTS OF COOPERATION.
(a) In General- Chapter 201 of title 18, United States Code, is amended by
inserting after section 3013 the following:
`Sec. 3014. Preservation of fundamental legal protections and rights in
the context of investigations and enforcement matters regarding organizations
`(a) Definitions- In this section:
`(1) ATTORNEY-CLIENT PRIVILEGE- The term `attorney-client privilege' means
the attorney-client privilege as governed by the principles of the common
law, as they may be interpreted by the courts of the United States in the
light of reason and experience, and the principles of article V of the Federal
Rules of Evidence.
`(2) ATTORNEY WORK PRODUCT- The term `attorney work product' means materials
prepared by or at the direction of an attorney in anticipation of litigation,
particularly any such materials that contain a mental impression, conclusion,
opinion, or legal theory of that attorney.
`(b) In General- In any Federal investigation or criminal or civil enforcement
matter, an agent or attorney of the United States shall not--
`(1) demand, request, or condition treatment on the disclosure by an organization,
or person affiliated with that organization, of any communication protected
by the attorney-client privilege or any attorney work product;
`(2) condition a civil or criminal charging decision relating to a organization,
or person affiliated with that organization, on, or use as a factor in determining
whether an organization, or person affiliated with that organization, is
cooperating with the Government--
`(A) any valid assertion of the attorney-client privilege or privilege
for attorney work product;
`(B) the provision of counsel to, or contribution to the legal defense
fees or expenses of, an employee of that organization;
`(C) the entry into a joint defense, information sharing, or common interest
agreement with an employee of that organization if the organization determines
it has a common interest in defending against the investigation or enforcement
matter;
`(D) the sharing of information relevant to the investigation or enforcement
matter with an employee of that organization; or
`(E) a failure to terminate the employment of or otherwise sanction any
employee of that organization because of the decision by that employee
to exercise the constitutional rights or other legal protections of that
employee in response to a Government request; or
`(3) demand or request that an organization, or person affiliated with that
organization, not take any action described in paragraph (2).
`(c) Inapplicability- Nothing in this Act shall prohibit an agent or attorney
of the United States from requesting or seeking any communication or material
that such agent or attorney reasonably believes is not entitled to protection
under the attorney-client privilege or attorney work product doctrine.
`(d) Voluntary Disclosures- Nothing in this Act is intended to prohibit an
organization from making, or an agent or attorney of the United States from
accepting, a voluntary and unsolicited offer to share the internal investigation
materials of such organization.
`(e) Not to Affect Examination or Inspection Access Otherwise Permitted- This
Act does not affect any other federal statute that may authorize, in the course
of an examination or inspection, an agent or attorney of the United States
to require or compel the production of attorney-client privileged material
or attorney work product.
`(f) Charging Decisions Not to Include Decisions to Charge Under Independent
Prohibitions- It is not conditioning a charging decision under subsection
(b)(2) of this section to charge an organization or person affiliated with
that organization for conduct described in subparagraph (B), (C), or (D) of
that subsection under a federal law which makes that conduct in itself an
offense.'.
(b) Conforming Amendment- The table of sections for chapter 201 of title 18,
United States Code, is amended by adding at the end the following:
`3014. Preservation of fundamental legal protections and rights in the context
of investigations and enforcement matters regarding organizations.'.
Passed the House of Representatives November 13, 2007.
Attest:
LORRAINE C. MILLER,
Clerk.
END
