Attorney-Client Privilege Protection Act of 2009

Legislation: Attorney-Client Privilege Protection Act of 2009

Overview

Since 2006, congressional hearings and legislation have focused on how the attorney-client privilege should apply in federal prosecutions involving corporations and business entities. In 2007, the Attorney-Client Privilege Protection Act passed the House of Representatives by a voice vote. See 153 Cong. Rec. H13562-64 (daily ed. Nov. 13, 2007) (passage on voice vote); see also H.R. 3013, 110th Cong., 1st Sess. (2009) (the Attorney-Client Privilege Protection Act of 2007).


In the 111th Congress, the Attorney Client Privilege Protection Act of 2009 was reintroduced in the Senate as S. 445, and in the House of Representatives as H.R. 4326. 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 upon introducing S. 445, 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.

On December 16, 2009, Congressman Robert C. “Bobby” Scott (D-VA) reintroduced the Attorney-Client Privilege Protection Act of 2009 as H.R. 4326, 111th Cong., 1st Sess. (2009), which 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).

In sum, the legislation would bar federal prosecutors and investigators from demanding, requesting or conditioning waiver of the attorney-client privilege and attorney work product protections in corporate investigations. The government also would be barred conditioning prosecution or government decision based on a company’s assertion of the privilege or payment of legal fees for an employee.

For more information concerning the legislation, see Attorney-Client Privilege Protection Act Blog Posts. For more information on federal corporate prosecution guidelines, see the Corporate Prosecution Principles Resource Page.

Congressional Timeline

The timeline of recent congressional action is indicated below:

H.R. 4326, Attorney Client Privilege Protection Act

Date H.R. 4326 Congressional Action
Dec. 16, 2009 Representative Robert C. “Bobby” Scott [D-VA] introduced H.R. 4326, 111th Cong., 1st Sess. (2009), the Attorney Client Privilege Protection Act, which is referred to the House Judiciary Committee; Title: To provide appropriate protection to attorney-client privileged communications and attorney work product. See also Press Release (Rep. Scott Introduces Attorney-Client Privilege Protection Act).
Apr. 26, 2010Measure referred to the House Judicary Subcommittee on Crime, Terrorism, and Homeland Security

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S. 445, Attorney Client Privilege Protection Act

Date S. 445 Congressional Action
Feb. 13, 2009 Senator Arlen Specter (R-PA) introduces S. 445, which is referred to the Senate Judiciary Committee. See 154 Cong. Rec. S2331-S2332 (Feb. 13, 2009) (remarks of Senator Specter upon introduction).

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Prior House Action (110th Congress)

Some key materials during prior congressional action are noted below, in the House and Senate:

Date Prior House Action
Nov. 14, 2009 H.R. 3013 received in the Senate and referred to the Senate Judiciary Committee. See 153 Cong. Rec. S14396 (daily ed. Nov. 14, 2007).
Nov. 13, 2007 House of Representatives passes H.R. 3013 on voice vote. See 153 Cong. Rec. H13562-64 (daily ed. Nov. 13, 2007) (passage on voice vote).
Nov. 13, 2007 House Judiciary Committee issues report on H.R. 3013. See H. Rep. No. 445, 110th Cong., 1st Sess. (Nov. 13, 2007).
Nov. 13, 2007 Letter of Principal Deputy Assistant Attorney General Brian A. Benczkowski to the Honorable Nancy Pelosi, Speaker, U.S. House of Representatives (Nov. 13, 2007)
Aug. 1, 2007 House Judiciary Committee marks-up and reports out H.R. 3013 on voice vote. See House Judiciary Committee Markup Transcript of H.R. 3013 (Aug. 1, 2007) (beginning at p. 106).
July 24, 2007 House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security marks-up and reports H.R. 3013 to the House Judiciary Committee on voice vote.
July 24, 2007 House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security marks-up and reports H.R. 3013 to the House Judiciary Committee on voice vote.
July 20, 2007 H.R. 3013 is referred to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security.
July 12, 2007 Representative Robert C. “Bobby” Scott (D-VA) introduced H.R. 3013, 110th Cong., 1st Sess. (2009), which is referred to the House Judiciary Committee; Title: To provide appropriate protection to attorney-client privileged communications and attorney work product.
March 8, 2007 The McNulty Memorandum’s Effect on the Right to Counsel in Corporate Investigations, Hearing before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, 110th Cong., 1st Sess. (March 8, 2007) (Serial No. 110-24)

Witnesses:

  • Barry M. Sabin, Deputy Assistant Attorney General, U.S. Department of Justice, Washington, DC
  • Andrew Weissmann, Partner, Jenner and Block, New York, NY
  • William M. Sullivan, Jr., Partner, Winston and Strawn, LLP, Washington, DC
  • Karen J. Mathis, President, American Bar Association, Chicago, IL
  • Richard T. White, Senior Vice President, Secretary, and General Counsel, The Auto Club Group, Dearborn, MI
March 7, 2007 White Collar Enforcement: Attorney-Client Privilege And Corporate Waivers, Hearing before the House Judiciary Subcommittee On Crime, Terrorism, and Homeland Security, 109th Cong., 2d Sess. (March 7, 2006) (Serial No. 109–112)

Witnesses:

  • Robert D. McCallum, Jr., Associate Attorney General, U.S. Department of Justice
  • Honorable Dick Thornburgh, Kirkpatrick & Lockhart Nicholson Graham LLP
  • Thomas J. Donohue, President and CEO, U.S. Chamber of Commerce
  • William M. Sullivan, Jr., Litigation Partner, Winston & Strawn, LLP

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Prior Senate Action (110th Congress)


Date Prior Senate Action
June 26, 2008 Senator Arlen Specter (R-PA) introduces a modified version of prior S. 186, as S. 3217, which is referred to the Senate Judiciary Committee. See 153 Cong. Rec. S6294-95 (daily ed. June 26, 2008) (remarks of Sen. Specter upon introduction of S. 3217).
Sept. 18, 2007 Examining Approaches to Corporate Fraud Prosecutions and the Attorney-Client Privilege Under the McNulty Memorandum, Hearing before the Senate Judiciary Committee, 110th Cong., 1st Sess. (Sept. 18, 2007) (Serial No. J–110–55)

Witnesses:

  • Karin Immergut, United States Attorney, District of Oregon, Department of Justice, and Chair, White Collar Subcommittee for the Attorney General’s Advisory Committee, Portland, Oregon
  • Daniel Richman, Professor, Columbia Law School, New York, New York
  • Michael Seigel, Professor, University of Florida Fredric G. Levin College of Law, Gainesville, Florida
  • Dick Thornburgh, former Attorney General of the United States and Of Counsel, K&L Gates, Washington, D.C.
  • Andrew Weissmann, Partner, Jenner & Block, LLP, New York, New York
Jan. 4, 2007 Senator Arlen Specter (R-PA) introduces the Attorney-Client Privilege Protection Act of 2007, S. 186, 110th Cong., 1st Sess. (2007), which is referred to the Senate Judiciary Committee; Title: A bill to provide appropriate protection to attorney-client privileged communications and attorney work product. See The Thompson Memorandum’s Effect on the Right to Counsel in Corporate Investigations, Hearing before the Senate Judiciary Committee, 109th Cong., 2d Sess. (Sept. 12, 2006) (Serial No. J–109–108)

Witnesses:

  • Thomas J. Donohue, President and Chief Executive Officer, U.S. Chamber of Commerce, Washington, DC
  • Karen J. Mathis, President, American Bar Association, Chicago, Illinois
  • Paul J. McNulty, Deputy Attorney General, Department of Justice, Washington, DC
  • Edwin Meese, III, former Attorney General, Ronald Reagan Distinguished Fellow in Public Policy, and Chairman, Center for Legal and Judicial Studies, The Heritage Foundation, Washington, DC
  • Mark B. Sheppard, Partner, Sprague & Sprague, Philadelphia, Pennsylvania
  • Andrew Weissmann, Partner, Jenner & Block, LLP, New York, New York

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Date Other Related Materials
June 20, 2008 Letter of 33 former U.S. Attorneys to Senate Judiciary Committee Chairman Patrick Leahy in support of reform legislation, S. 186, introduced by Senator Specter on January 4, 2007

  • “The 2006 McNulty Memorandum, which was heralded as a much-needed fix to the 2003 Thompson Memorandum, is inadequate for a number of reasons. First, the Memo provides for oversight of privilege waiver requests by the U.S. Attorney or Main Justice. However, a report written by the Honorable E. Norman Veasey, former Chief Justice of the state of Delaware, found that prosecutors in the field are still requesting or demanding privilege waivers without the supervision required by the McNulty Memorandum. Second, the McNulty Memorandum does not cover other federal agencies, including the SEC, HUD, FCC, EPA, and others, all of which have issued policies requiring waiver in exchange for cooperation. Legislation that covers all federal agents and agencies is thus needed to ensure compliance across the board.”

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Attorney-Client Privilege Protection Act Blog Posts

Corporate Prosecution Principles Resource Page

Federal Rules of Evidence
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