Attorney-Client Privilege Protection Act of 2009 Is Introduced In the Senate (S. 445)

Senator Specter contends legislation is necessary despite recent changes in the Department of Justice

In the last Congress, the Attorney Client Privilege Protection Act was introduced to bar federal attorneys in criminal and civil enforcement actions from requesting or using communications protected by the Attorney-Client privilege or materials covered by the work product doctrine. On November 13, 2007, the U.S. House of Representatives passed H.R. 3013, the Attorney-Client Privilege Protection Act. See 153 Cong. Rec. H13562-13564 (Nov. 13, 2007). The measure died in the Senate after the U.S. Department of Justice adopted new guidelines. See U.S. Attorney’s Manual §§ 9-28.000 to 9-28.1300; see also Revised DOJ Corporate Prosecution Guidelines Issued.

On February 13, 2009, Senator Arlen Specter (R-PA) introduced S. 445, the Attorney-Client Privilege Protection Act of 2009. He noted that while the Department of Justice made improvements to the corporate prosecution guidelines last August, they were insufficient since they could be modified by the department and failed to carry the force of law. In his remarks, Senator Specter noted:

“Like my previous bills, this bill will protect the sanctity of the attorney-client relationship by statutorily prohibiting Federal prosecutors and investigators across the executive branch from requesting waiver of attorney-client privilege and attorney work product protections in corporate investigations. The bill would similarly prohibit the government from conditioning charging decisions or any adverse treatment on an organization's payment of employee legal fees, invocation of the attorney-client privilege, or agreement to a joint defense agreement.”
154 Cong. Rec. S2331-S2332 (Feb. 13, 2009) (remarks of Senator Specter). The legislation has been referred to the Senate Judiciary Committee.

For discussion of the legislation in the last Congress, see:

Federal Rules of Evidence