[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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