The attorney-client privilege is fundamental to fairness and balance in
our justice system and essential to corporate compliance regimes.
Government-coerced waiver has become a multi-agency problem that
requires a multi-agency solution. A Presidential Executive Order
applying reforms like those adopted by the Department of Justice in the
2008 Filip Memo or comprehensive legislation like the Attorney-Client
Privilege Protection Act described below would protect the
attorney-client and work product privileges, as well as employee
constitutional rights, during investigations.
The Attorney-Client Privilege Protection Act
S. 3217 & H.R. 3013, the “Attorney Client Privilege Protection Act of 2007”
S. 445 & H.R. 4326, the “Attorney Client Privilege Protection Act of 2009”
The Attorney Client Privilege Protection Act of 2007 and 2009 was designed to preserve the attorney-client privilege and attorney work-product protections available to a company or organization as well as to safeguard the constitutional rights and other legal protections available to employees of such an organization. It does so by placing practical and clearly defined limits on a federal agency’s power to coerce or pressure an organization to waive its legitimate legal protections or to act against the interests of its employees during the course of an investigation.
Why It Matters
The Attorney-Client Privilege Protection Act would prohibit any agent or attorney of the United States from demanding, requesting or otherwise pressuring any company or other organization to:
- Disclose information that is protected by the attorney-client privilege or attorney work-product doctrine,
- Refuse to provide counsel to, or contribute to the legal expenses of, an employee,
- Refuse to enter into a joint defense, common interest, or information sharing agreement with an employee,
- Withhold information from employees that would be relevant to their defense, or
- Terminate or sanction an employee for exercising his or her constitutional rights or other legal protections.
The Department of Justice and other federal agencies have increasingly adopted policies that weaken the attorney client privilege and work product protections and threaten employees’ constitutional rights, including the right to effective legal counsel and the right against self-incrimination. DOJ’s current policy, as embodied in a December 2006 memorandum from Deputy Attorney General Paul McNulty, permits federal prosecutors to request waivers of attorney client privilege and work product protection, penalize an organization’s refusal to provide certain types of material that may implicate those protections, reward an organization for providing all types of privileged materials, and to consider whether an organization has taken any of the steps outlined above in assessing whether that organization will be deemed to have cooperated with the government.
NACDL’s Position on Attorney-Client Legislation
NACDL Supports The Attorney-Client Privilege Protection Act
The attorney client privilege is essential to ensure that both individual and corporate clients may communicate candidly with their attorneys in confidence. The Attorney-Client Privilege Protection Act would prevent the continued erosion of this fundamental legal protection. NACDL, along with many prominent bar associations, business groups, and civil liberties organizations, strongly supports this important legislation.
Legislation History and Outlook
The Attorney-Client Privilege Protection Act of 2007
The Attorney-Client Privilege Protection Act of 2007 (S. 186 and H.R. 3013) was re-introduced in the Senate by Senator Arlen Specter (R-PA) in June 2008 and referred to the Committee on the Judiciary. Senators Joseph Biden (D-DE), Lindsey Graham (R-SC), John Kerry (D-MA), John Cornyn (R-TX), Mark Pryor (R-AK), Elizabeth Dole (R-NC), Mary Landrieu (D-LA), Thad Cochran (R-MS), Thomas Carper (D-DE), Claire MCaskill (D-MO), Dianne Feinstein (D-CA), Jim Webb (D-VA) were co-sponsors of the Senate bill. Senator Specter had previously introduced this legislation as S. 3217.
H.R. 3013, the bill's identical House counterpart, was introduced in the House by Representative Bobby Scott (D-VA) on July 12, 2007 and passed out of the House Judiciary Committee on August 1, 2007. H.R. 3013 passed the House with no serious opposition on November 12, 2007.
Attorney-Client Privilege Protection Act of 2009
The Senate version of the Act, S. 445, was introduced into the Senate by Senator Arlen Specter in February of 2009. Representative Bobby Scott introduced the virtually identical House version of the bill, H.R. 4326, to the House in December of 2009. No further action was
How to Get Involved
Please use NACDL’s Contact Congress function to call or e-mail your U.S. Representative or Senator to encourage them to re-introduce, co-sponsor, or generally support similar legislation in the 113th Congress.
Click HERE to find and contact your elected officials in Washington.
S. 445 & H.R. 4326, the Attorney-Client Privilege Protection Act of 2009
S. 3217, the Attorney-Client Privilege Protection Act of 2008
S. 186 & H.R. 3013, the Attorney-Client Privilege Protection Act of 2007
Senator Specter’s Floor Statement
June 20, 2008, Letter to Senator Leahy from Former U.S. Attorneys in Support of the Attorney-Client Privilege Protection Act
NACDL's Attorney-Client Privilege Protection webpage