Federal Evidence Review

Support Grows For Attorney-Client Privilege Legislation In Unexpected Corner

As recently noted, pending in Congress are two separately passed measures in the House of Representatives and Senate which would codify new protections under the attorney-client privilege (S. 2450 and H.R. 3013). On June 20, 2008, 33 former U.S. Attorneys wrote to Senate Judiciary Committee Patrick Leahy and his committee colleagues in support of S. 186, introduced by Senator Specter on January 4, 2007. See 153 CONG. REC. S181 (daily ed. Jan. 4, 2007) (remarks of Sen. Specter upon introduction of S. 186).

Of note, S. 186 is virtually identical to H.R. 3013, which was passed by the House of Representatives on November 13, 2007. The approach taken by these measures is different than S. 2450, which is based on a proposal of the U.S. Judicial Conference and would establish new FED. R. EVID. 502. In contrast, S. 186 and H.R. 3013 would codify a new statute: 18 U.S.C. § 3014 concerning the attorney-client privilege. S. 2450 passed the Senate on February 27, 2008. It seems that House and Senate conferees could meet to address differences and common issues between the House and Senate approved measures. Alternatively, if the Senate approved S. 186, which is nearly identical to H.R. 3013, then that measure could be sent to the president.

It seems the former prosecutors may prefer the statutory approach over the new evidence rule version recommended by the U.S. Judicial Conference. The letter does not discuss the U.S. Judicial Conference proposal. The letter refers to the Senate bill as "crucial to stemming the Department of Justice’s widespread practices and policies that pressure businesses to waive the attorney-client privilege in return for avoiding a harsher charging decision. S. 186 protects the vital attorney-client privilege without hindering vital law enforcement efforts."

Some of the former prosecutors signing the letter include: Wayne A. Budd, U.S. Attorney, District of Massachusetts (1989-92) and Associate Attorney General (1992-93); Joseph E. diGenova, U.S. Attorney, District of the District of Columbia (1983-88); Victoria Toensing, Deputy Assistant Attorney General (1984-88); and William F. Weld, U.S. Attorney, District of Massachusetts (1981-86) and Assistant Attorney General, Criminal Division (1986-88).

The former prosecutors concluded the McNulty Memo is insufficient:

"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."

While the current Congress is winding down, there may be sufficient support building for congressional adoption. The unanswered question is whether the Bush Administration would approve or veto the reform measure, which has been opposed by the U.S. Department of Justice. See Letter of Brian A. Benczkowski to Honorable Nancy Pelosi, Speaker, U.S. House of Representatives (Nov. 13, 2007). If the measure is not enacted, based on growing support, the next president may be sent similar legislation.