[Congressional Record Volume 155, Number 30 (Friday, February 13, 2009)]
[Senate]
[Pages S2331-S2332]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself, Ms. Landrieu, Mr. Carper, Mr. Kerry, 
        Mrs. McCaskill, and Mr. Cochran):
  S. 445. 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 reintroduce 
the Attorney-Client Privilege Protection Act of 2009, which is nearly 
identical to S. 3217, a bill I introduced in July of 2008 under the 
same name. This legislation continues to address the Department of 
Justice's corporate prosecution guidelines. Those guidelines, last 
revised by Deputy Attorney General Mark Filip in August 2008, erode the 
attorney-client relationship by allowing prosecutors to continue 
considering the provision of privileged information in order for 
corporations to receive cooperation credit.
  To their credit, the Filip guidelines preclude prosecutors from 
asking for privilege waivers in nearly all circumstances. However, as 
evidenced by the numerous versions of the Justice Department's 
corporate prosecution guidelines over the past decade, the Filip 
reforms cannot be trusted to remain static. Moreover, unlike Federal 
law--which requires the assent of both houses and the President's 
signature or a super-majority in Congress--the Filip guidelines are 
subject to unilateral executive branch modification. Therefore, to 
avoid a recurrence of prosecutorial abuses and attorney-client 
privilege waiver demands, legislation is necessary.
  Like my previous bills, this bill will protect the sanctity of the 
attorney-client relationship by statutorily prohibiting Federal 
prosecutors and investigators across the executive branch 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 of the attorney-client privilege, or agreement to a 
joint defense agreement.
  The bill makes many subtle improvements over earlier iterations, 
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 
further 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).''
  Though an improvement over past guidelines, there is no need to wait 
to see how the Filip guidelines will operate in practice. There is 
similarly no need to wait for another Department of Justice or 
executive branch reform that will likely fall short and become the 
sixth policy in the last 10 years. Any such internal reform may prove 
fleeting and might not address the privilege waiver policies of other 
government agencies that refer matters to the Department of Justice, 
thus allowing in through the window what isn't allowed through the 
door.
  As I said when I introduced my first bill on this subject, the right 
to counsel is too important to be passed over for prosecutorial 
convenience or Executive Branch whimsy. 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

[[Page S2332]]

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 Filip memorandum.
  As in my prior bills designed to protect the attorney-client 
privilege, 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 constitutional protections 
of the attorney-client relationship are preserved in Federal 
prosecutions and investigations.
                                 ______