Federal Evidence Review

Congressman Bobby Scott reintroduces the Attorney-Client Privilege Protection Act (H.R. 4326), which has early bipartisan support and follows House passage in the prior Congress, providing enhanced prospects for legislative approval next year; see H.R. 4326

Recent congressional activity suggests that 2010 may be ripening for legislative adoption of the Attorney-Client Privilege Protection Act. On December 16, 2009, Congressman Robert C. “Bobby” Scott (D-VA) introduced the Attorney-Client Privilege Protection Act of 2009 as H.R. 4326, 111th Cong., 1st Sess. (2009). The legislation is identical to the measure he introduced in the prior Congress and which passed the House of Representatives on a voice vote on November 13, 2007. See H.R. 3013, 110th Cong., 1st Sess. (2009) (the Attorney-Client Privilege Protection Act of 2007); H. Rep. No. 445, 110th Cong.,1st Sess. (Nov. 13, 2007); 153 Cong. Rec. H13562-64 (daily ed. Nov. 13, 2007) (passage on voice vote). Upon introduction, the House measure received bipartisan support, including co-sponsorship by House Judiciary Committee Chairman John Conyers, Jr. (D-MI); House Judiciary Committee Ranking Minority Member Lamar Smith (R-TX); and Representatives Jerrold Nadler (D-NY), William Delahunt (D-MA-10), Daniel Lungren (R-CA), and Howard Coble (R-NC).

In a statement released upon introducing the measure, Congressman Scott noted one of the central objectives for the legislation:

“The federal government needs to have a uniform policy respecting the attorney-client privilege and work product doctrine, which are fundamental to our system of justice and must not be eroded. The bill we have introduced will establish such a policy for all federal departments and agencies.”

See Press Release (Rep. Scott Introduces Attorney-Client Privilege Protection Act).

One unanswered question is what will be the Administration’s position be on any Attorney-Client Privilege Protection Act? The last Administration strongly opposed the legislation. The Department of Justice noted in a letter to House Speaker Nancy Pelosi that it believed the legislation would “impede the Department's efforts to bring corporate criminals to justice, protect investors, shareholders and our nation's retirees from the devastating effects of corporate fraud, and return assets to victims of crime. For these and the reasons that follow, the Department of Justice strongly opposes this legislation.” See Letter of Principal Deputy Assistant Attorney General Brian A. Benczkowski to the Honorable Nancy Pelosi, Speaker, U.S. House of Representatives (Nov. 13, 2007). Will the new Administration reach the same conclusion or have different views. Ironically, Attorney General Eric Holder was the author of the first Deputy Attorney General Memorandum (known as the “Holder Memo”) which established guidelines for prosecutors deciding whether to charge a corporation or other business organization. See Memorandum from Deputy Attorney General Eric H. Holder, Jr. to Heads of Department Components and U.S. Attorneys, Bringing Criminal Charges Against Corporations (June 16, 1999). The corporate prosecution guidelines have been modified since 1999 and have been the subject of congressional and other criticism. See generally the Corporate Prosecution Guidelines Resource Page.

Pending Senate Measure

In the last few Congresses, Senator Specter has introduced the Attorney-Client Privilege Protection Act in the Senate. In February of this year, he introduced S. 445, which was referred to and has been pending in the Senate Judiciary Committee. See 154 Cong. Rec. S2331-32 (Feb. 13, 2009) (remarks of Senator Specter upon introduction); see also Attorney-Client Privilege Protection Act of 2009 Is Introduced In the Senate (S. 445).

The Federal Evidence Review will continue to monitor legislative activity concerning the Attorney-Client Privilege Protection Act. For a summary of developments with links to key materials during the past few years, see Attorney-Client Privilege Protection Act Legislative History Page.

Role Of Selective Waiver

Both the House or Senate measures are silent on an important issue concerning the assertion of the attorney-client privilege, namely the selective waiver doctrine. Under the selective waiver doctrine, a corporation may provide the government with otherwise privileged material without waiving the Attorney-Client privilege or work product doctrine to subsequent third parties. In other words, a limited waiver of covered communications to the government does not waive the privilege to other third parties. The circuits are split on the application of the selective waiver doctrine. See, e.g., In re: Qwest Communications International Inc., Securities Litigation, 450 F.3d 1179 (10th Cir. 2006) (discussing circuit split).

The House measure provides for voluntary disclosures by corporations:

“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.”

H.R. 4326, 111th Cong., 1st Sess. (2009) (proposed § 3014(d)).

However, a question is posed concerning how meaningful this voluntary disclosure provision may be without a selective waiver provision. As an example, in a recent case in the District of Columbia, a company entered into a deferred prosecution agreement and cooperated with the government. Materials were provided to the government with the understanding that the company was not waiving “any privilege as to any party other than the United States, and” the production “will not be considered a waiver as to any other subject or issue.” After other defendants were subsequently charged, they sought production of the confidential materials the company provided to the government, which the government and company opposed. The district court ordered production. On appeal, the circuit remanded the case for the district court to determine which documents were material to the defendant’s defense “and to protect against the public disclosure of material documents in a manner consistent with Thompson’s right to a fair trial.” See United States v. Thompson, 562 F. 3d 387, 390 (D.C. Cir. 2009); see also Defendant Compels Production Of Company Records Provided To Earlier Government Investigation. Given the uncertainty on the scope of protected disclosures from the litigation like the Thompson case, how many companies would want to provide voluntary disclosure under the terms of the legislation? Perhaps further congressional review may address this issue.

For more on the selective waiver issue, see Selective Waiver Under The Attorney-Client Privilege Protection Act; Selective Waiver Absent From New FRE 502; Peter K. Vigeland, Robert W. Trenchard, Daniel C. Richenthal, Michelle E. Kanter, Selective Waiver: Changes in policy and the law alter the calculus in weighing a client's cooperation, N.Y.L.J. (Dec. 1, 2008).

Corporate Prosecution Guidelines

For more information on the history of the federal corporate prosecution guidelines, including links to key materials on this issue over the past decade, see the Corporate Prosecution Guidelines Resource Page.