II 111th CONGRESS 1st Session S. 445 IN THE SENATE OF THE UNITED STATES February 13, 2009 Mr. Specter (for himself, Ms. Landrieu, Mr. Carper, Mr. Kerry, Mrs. McCaskill, and Mr. Cochran) 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.

1.

Short title

This Act may be cited as the Attorney-Client Privilege Protection Act of 2009.

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.

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:

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— (A)means an organization as defined in section 18 of title 18, United States Code, and any State, local, or municipal government entity or instrumentality; and (B)does not include— (i)a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act (21 U.S.C. 848); (ii)an entity charged under chapter 96 of title 18, United States Code; or (iii)a 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, officer, director, 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, officer, director, 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, officer, director, 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, officer, director, or agent of such organization; or (ii)determining whether an organization, or a current or former employee, officer, director, or agent of such organization, is cooperating with the Government. (B)

Conduct

The conduct described in this subparagraph is— (i)the good faith 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, officer, director, or agent of an organization; (iii)the good faith entry into, or existence of, a bona fide joint defense, information sharing, or common interest agreement between an organization and a current or former employee, officer, director, or agent of such organization, or among its current or former employees, officers, directors, or agents; (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, officer, director, or agent of such organization, or among its current or former employees, officers, directors, or agents; or (v)the failure to terminate the employment or affiliation of or otherwise sanction any employee, officer, director, or agent of that organization because of the decision by that employee, officer, director, 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, officer, director, 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)the agent or attorney would not reasonably know is subject to a claim of attorney-client privilege or attorney work product; or (2)the agent or attorney reasonably believes is not entitled to protection under the attorney-client privilege or attorney work product doctrine. (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 privileged or otherwise protected nature of the material voluntarily provided in conformance with the terms of paragraph (1), or any material redacted therefrom, in— (A)making a civil or criminal charging or enforcement decision relating to an organization, or a current or former employee, officer, director, or agent of such organization; or (B)determining whether an organization, or a current or former employee, officer, director, 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, officer, director, 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. .