110th CONGRESS
1st Session
S. 186
To provide appropriate protection to attorney-client privileged
communications and attorney work product.
IN THE SENATE OF THE UNITED STATES
January 4, 2007
Mr. SPECTER introduced the following bill; which was read twice and referred
to the Committee on the Judiciary
A BILL
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.'.
(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.'.
END
