[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4326 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 4326

    To provide appropriate protection to attorney-client privileged 
               communications and attorney work product.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           December 16, 2009

 Mr. Scott of Virginia (for himself, Mr. Conyers, Mr. Smith of Texas, 
  Mr. Nadler of New York, Mr. Delahunt, Mr. Coble, and Mr. Daniel E. 
    Lungren of California) introduced the following bill; which was 
               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 2009''.

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) Despite the existence of these legitimate tools, the 
        Department of Justice and other agencies have increasingly 
        employed tactics that 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.
            (7) 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.
            (8) Waiver demands and other tactics of Government agencies 
        are encroaching on the constitutional rights and other legal 
        protections of employees.
            (9) The attorney-client privilege, work product doctrine, 
        and payment of counsel fees 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.
    ``(b) In General.--In any Federal investigation or criminal or 
civil enforcement matter, an agent or attorney of the United States 
shall not--
            ``(1) demand, request, or condition treatment on the 
        disclosure by an organization, or person affiliated with that 
        organization, of any communication protected by the attorney-
        client privilege or any attorney work product;
            ``(2) condition a civil or criminal charging decision 
        relating to a organization, or person affiliated with that 
        organization, on, or use as a factor in determining whether an 
        organization, or person affiliated with that organization, is 
        cooperating with the Government--
                    ``(A) any valid assertion of the attorney-client 
                privilege or privilege for attorney work product;
                    ``(B) the provision of counsel to, or contribution 
                to the legal defense fees or expenses of, an employee 
                of that organization;
                    ``(C) the entry into a joint defense, information 
                sharing, or common interest agreement with an employee 
                of that organization if the organization determines it 
                has a common interest in defending against the 
                investigation or enforcement matter;
                    ``(D) the sharing of information relevant to the 
                investigation or enforcement matter with an employee of 
                that organization; or
                    ``(E) a failure to terminate the employment of or 
                otherwise sanction any employee of that organization 
                because of the decision by that employee to exercise 
                the constitutional rights or other legal protections of 
                that employee in response to a Government request; or
            ``(3) demand or request that an organization, or person 
        affiliated with that organization, not take any action 
        described in paragraph (2).
    ``(c) Inapplicability.--Nothing in this Act shall prohibit an agent 
or attorney of the United States from requesting or seeking any 
communication or material that such agent or attorney reasonably 
believes is not entitled to protection under the attorney-client 
privilege or attorney work product doctrine.
    ``(d) Voluntary Disclosures.--Nothing in this Act is intended to 
prohibit an organization from making, or an agent or attorney of the 
United States from accepting, a voluntary and unsolicited offer to 
share the internal investigation materials of such organization.
    ``(e) Not To Affect Examination or Inspection Access Otherwise 
Permitted.--This Act does not affect any other Federal statute that may 
authorize, 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.--It is not conditioning a charging decision 
under subsection (b)(2) of this section to charge an organization or 
person affiliated with that organization for conduct described in 
subparagraph (B), (C), or (D) 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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