[Congressional Record Volume 154, Number 107 (Thursday, June 26, 2008)]
[Senate]
[Pages S6294-S6295]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By 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):
  S. 3217. A bill to provide appropriate protection to attorney-client 
privileged communications and attorney work product; to the Committee 
on the Judiciary.
  Mr. SPECTER. Mr. President, I seek recognition today to introduce the 
Attorney-Client Privilege Protection Act of 2008, which is a modified 
version of my earlier legislation by the same name. This legislation, 
which adds original cosponsors, continues to address the Department of 
Justice's corporate prosecution guidelines. Those guidelines, last 
revised by former Deputy Attorney General Paul McNulty in December 
2006, erode the attorney-client relationship by allowing prosecutors to 
request privileged information backed by the hammer of prosecution if 
the request is denied.
  Like my previous bill, S. 186, this bill will protect the sanctity of 
the attorney-client relationship by prohibiting federal prosecutors and 
investigators from requesting waiver of attorney-client privilege and 
attorney work product protections in corporate investigations. The bill 
would similarly prohibit the government from conditioning charging 
decisions or any adverse treatment on an organization's payment of 
employee legal fees, invocation

[[Page S6295]]

of the attorney-client privilege, or agreement to a joint defense 
agreement.
  The new version of the bill makes many subtle improvements, including 
defining ``organization'' to make clear that continuing criminal 
enterprises and terrorist organizations will not benefit from the 
bill's protections. The bill also clarifies language that the 
Department of Justice had previously criticized as ambiguous. The bill 
also makes clear in its findings that its prohibition on informal 
privilege waiver demands is far from unprecedented. The bill states: 
``Congress recognized that law enforcement can effectively investigate 
without attorney-client privileged information when it banned Attorney 
General demands for privileged materials in the Racketeer Influenced 
and Corrupt Organizations Act. See 18 U.S.C. Sec. 1968(c)(2).''
  There is no need to wait to see how the McNulty memorandum will 
operate in practice. There is similarly no need to wait for another 
internal Department of Justice reform that will likely fall short and 
be the fifth policy in the last 10 years. Any such internal reform will 
not address the privilege waiver policies of other government agencies 
that refer matters to the Department of Justice and allow in through 
the window what isn't allowed through the door.
  As I said when I introduced S. 186, the right to counsel is too 
important to be passed over for prosecutorial convenience. It has been 
engrained in American jurisprudence since the 18th century when the 
Bill of Rights was adopted. The 6th Amendment is a fundamental right 
afforded to individuals charged with a crime and guarantees proper 
representation by counsel throughout a prosecution. However, the right 
to counsel is largely ineffective unless the confidential 
communications made by a client to his or her lawyer are protected by 
law. As the Supreme Court observed in Upjohn Co. v. United States, 
``the attorney-client privilege is the oldest of the privileges for 
confidential communications known to the common law.'' When the Upjohn 
Court affirmed that attorney-client privilege protections apply to 
corporate internal legal dialogue, the Court manifested in the law the 
importance of the attorney-client privilege in encouraging full and 
frank communication between attorneys and their clients, as well as the 
broader public interests the privilege serves in fostering the 
observance of law and the administration of justice. The Upjohn Court 
also made clear that the value of legal advice and advocacy depends on 
the lawyer having been fully informed by the client.
  In addition to the importance of the right to counsel, it is also 
fundamental that the Government has the burden of investigating and 
proving its own case. Privilege waiver tends to transfer this burden to 
the organization under investigation. As a former prosecutor, I am well 
aware of the enormous power and tools a prosecutor has at his or her 
disposal. The prosecutor has enough power without the coercive tools of 
the privilege waiver, whether that waiver policy is embodied in the 
Holder, Thompson, McCallum, McNulty--or a future Filip--memorandum.
  As in S. 186, this bill amends title 18 of the United States Code by 
adding a new section, Sec. 3014, that would prohibit any agent or 
attorney of the U.S. Government in any criminal or civil case to demand 
or request the disclosure of any communication protected by the 
attorney-client privilege or attorney work product. The bill would also 
prohibit government lawyers and agents from basing any charge or 
adverse treatment on whether an organization pays attorneys' fees for 
its employees or signs a joint defense agreement.
  This legislation is needed to ensure that basic protections of the 
attorney-client relationship are preserved in Federal prosecutions and 
investigations.

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