[Congressional Record Volume 154, Number 156 (Sunday, September 28, 2008)]
[Extensions of Remarks]
[Page E2135]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 IN SUPPORT OF H.R. 3013, THE ATTORNEY-CLIENT PRIVILEGE PROTECTION ACT

                                 ______
                                 

                     HON. ROBERT C. ``BOBBY'' SCOTT

                              of virginia

                    in the house of representatives

                      Saturday, September 27, 2008

  Mr. SCOTT of Virginia. Mr. Speaker, I rise today in support of the 
``H.R. 3013, the Attorney-Client Privilege Protection Act of 2008.'' 
This legislation would have reversed an ever changing DOJ policy on 
privileged material. I sponsored this bill because I believe DOJ's 
prior policy allowed prosecutors to overreach in forcing organizations 
and their employees to waive the protections of the attorney-client 
privilege and the work product doctrine.
  On August 28, 2008, Deputy United States Attorney General Mark R. 
Filip announced a new policy that adopted much of the substance of H.R. 
3013. I applaud DOJ's effort, and see it as a clear and substantive 
improvement over the previous policy, in many respects. However, I 
believe legislation is still needed for at least three reasons.
  First, the new DOJ policy does not cover other federal agencies and 
many still have policies that undermine these important protections. A 
list of some of those agencies and their policies is attached to this 
statement.
  Second, agency policies on protections to the attorney-client 
privilege, including the Deputy Attorney General's new policy, do not 
have the effect of law. Defendants are advised in the new DOJ policy to 
complain to a prosecutor's supervisor when a prosecutor has violated 
DOJ policy. It is unrealistic, to say the least, to think that 
defendants are going to complain to the supervisor of a prosecutor who 
is determining whether to indict the organization because of the 
actions of one or more of its employees.
  Lastly and perhaps most importantly, public policy in this area 
should not be subject to the whims of every new administration. Deputy 
Attorney General Fillip's new policy is DOJ's fifth attempt in 10 years 
to settle this matter.
  Given the desire by some Members to give this new DOJ policy a chance 
to play out, it appears that legislation may not pass in the Congress 
this year. However, I call on all federal agencies to change their 
policies to come into line with H.R. 3013 as soon as possible. If 
legislation fails to pass in this Congress, I intend to reintroduce 
legislation in the next Congress. I also plan to hold a hearing in the 
next Congress to examine the issues of attorney-client privilege waiver 
and employee due process rights in federal investigations, to determine 
what if any real change has occurred in DOJ's actions under its new 
policy, and to determine whether other Federal agencies have 
appropriately revised their policies.

       Department of Justice.
       Securities and Exchange Commission (ac privilege, work 
     product, employee legal rights).
       Department of Housing and Urban Development (ac privilege, 
     work product, employee legal rights).
       Environmental Protection Agency (ac privilege and work 
     product only).
       General Services Administration/Civilian Agency Acquisition 
     Council/Defense Acquisition Regulations Council (ac privilege 
     and work product only; waiver demand is not explicit, but 
     rather is implied as part of its proposed FAR rule dealing 
     with ``Contractor Compliance Program and Integrity 
     Reporting'').
       Commodity Futures Trading Commission (employee legal rights 
     only; it reversed its ac privilege and work product policies 
     at our request).

                          ____________________