[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3217 Introduced in Senate (IS)]
110th CONGRESS
2d Session
S. 3217
To provide appropriate protection to attorney-client privileged
communications and attorney work product.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 26, 2008
Mr. Specter (for himself, Mr. Biden, Mr. Graham, Mr. Kerry, Mr. Cornyn,
Mr. Pryor, Mrs. Dole, Ms. Landrieu, Mr. Cochran, Mr. Carper, Mrs.
McCaskill, and Mrs. Feinstein) 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 2008''.
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) Congress recognized that law enforcement can
effectively investigate without attorney-client privileged
information when it banned demands by the Attorney General for
privileged materials in the Racketeer Influenced and Corrupt
Organizations Act. See section 1968(c)(2) of title 18, United
States Code.
(7) Despite the existence of numerous investigative tools
that do not impact the attorney-client relationship, the
Department of Justice and other agencies have increasingly
created and implemented policies that tend to 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.
(8) 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.
(9) Waiver demands and related policies of Government
agencies are encroaching on the constitutional rights and other
legal protections of employees.
(10) As recognized throughout the common law, and
specifically in the crime-fraud exception, the attorney-client
privilege, work product doctrine, and payment of counsel fees
cannot and 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.
``(3) Organization.--The term `organization' does not
include--
``(A) a continuing criminal enterprise, as defined
in section 408 of the Controlled Substances Act (21
U.S.C. 848);
``(B) any group of individuals whose primary
purpose is to obtain money through illegal acts; or
``(C) any terrorist organization, as defined in
section 2339B.
``(b) Attorney-Client Privilege and Attorney Work Product.--
``(1) In general.--In any Federal investigation or criminal
or civil enforcement matter, including any form of
administrative proceeding or adjudication, an agent or attorney
of the United States shall not--
``(A) demand or request that an organization, or a
current or former employee or agent of such
organization, waive the protections of the attorney-
client privilege or the attorney work product doctrine;
``(B) offer to reward or actually reward an
organization, or current or former employee or agent of
such organization, for waiving the protections of the
attorney-client privilege or the attorney work product
doctrine; or
``(C) threaten adverse treatment or penalize an
organization, or current or former employee or agent of
such organization, for declining to waive the
protections of the attorney-client privilege or the
attorney work product doctrine.
``(2) Charging decisions.--
``(A) In general.--In any Federal investigation or
criminal or civil enforcement matter, including any
form of administrative proceeding or adjudication, an
agent or attorney of the United States shall not
consider any conduct described in subparagraph (B) in--
``(i) making a civil or criminal charging
or enforcement decision relating to an
organization, or a current or former employee
or agent of such organization; or
``(ii) determining whether an organization,
or a current or former employee or agent of
such organization, is cooperating with the
Government.
``(B) Conduct.--The conduct described in this
subparagraph is--
``(i) the valid assertion of the protection
of the attorney-client privilege or attorney
work product doctrine;
``(ii) the provision of counsel to, or
contribution to the legal defense fees or
expenses of, a current or former employee or
agent of an organization;
``(iii) the entry into, or existence of, a
valid joint defense, information sharing, or
common interest agreement between an
organization and a current or former employee
or agent of such organization, or among its
current or former employees;
``(iv) except as provided in subsection
(f), the sharing of relevant information in
anticipation of or in response to an
investigation or enforcement matter between an
organization and a current or former employee
or agent of such organization, or among its
current or former employees; or
``(v) the failure to terminate the
employment or affiliation of or otherwise
sanction any employee or agent of that
organization because of the decision by that
employee or agent to exercise personal
constitutional rights or other legal
protections in response to a Government
request.
``(3) Demands and requests.--In any Federal investigation
or criminal or civil enforcement matter, including any form of
administrative proceeding or adjudication, an agent or attorney
of the United States shall not demand or request an
organization, or a current or former employee or agent of such
organization, to refrain from the conduct described in
paragraph (2)(B).
``(c) Inapplicability.--Nothing in this section shall be construed
to prohibit an agent or attorney of the United States from requesting
or seeking any communication or material that--
``(1) an agent or attorney of ordinary sense and
understanding would not know is subject to a claim of attorney-
client privilege or attorney work product;
``(2) an agent or attorney of ordinary sense and
understanding would reasonably believe is not entitled to
protection under the attorney-client privilege or attorney work
product doctrine; or
``(3) would not be privileged from disclosure if demanded
by a subpoena duces tecum issued by a court of the United
States in aid of a grand jury investigation.
``(d) Voluntary Disclosures.--
``(1) In general.--Nothing in this section may be construed
to prohibit an organization from making, or an agent or
attorney of the United States from accepting, a voluntary and
unsolicited offer to waive the protections of the attorney-
client privilege or attorney work product doctrine.
``(2) Consideration in charging decisions.--An agent or
attorney of the United States shall not consider the fact that
material provided as described in paragraph (1), or any
material redacted therefrom, had been subject to a nonfrivolous
claim of attorney-client privilege or work-product protection
in--
``(A) making a civil or criminal charging or
enforcement decision relating to an organization, or a
current or former employee or agent of such
organization; or
``(B) determining whether an organization, or a
current or former employee or agent of such
organization, is cooperating with the Government.
``(3) Other consideration.--Subject to the limitations
under subsection (b), an agent or attorney of the United States
may consider a voluntary disclosure described in paragraph (1)
for any other purpose that is otherwise lawful.
``(e) Not To Affect Examination or Inspection Access Otherwise
Permitted.--This section does not affect any other Federal statute that
authorizes, in the course of an examination or inspection, an agent or
attorney of the United States to require or compel the production of
attorney-client privileged material or attorney work product.
``(f) Charging Decisions Not To Include Decisions To Charge Under
Independent Prohibitions.--Subsection (b)(2) shall not be construed to
prohibit charging an organization, or a current or former employee or
agent of such organization, for conduct described in clause (ii),
(iii), or (iv) of subparagraph (B) of that subsection under a Federal
law which makes that conduct in itself an offense.''.
(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.''.
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