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Bill Would Protect Attorney-Client Privilege

A bill filed in the House of Representatives this week would bar federal investigators from pressuring businesses and their employees to waive the attorney-client privilege as a condition of avoiding indictment or other sanctions. Introduced Wednesday by U.S. Rep. Bobby Scott, D-Va., as H.R. 4326, the bill mirrors legislation filed in the Senate in February by U.S. Sen. Arlen Specter, D-Pa.(S. 445).

The bill provides that federal investigators, in both criminal and civil matters, may not "demand, request, or condition treatment on the disclosure by an organization, or person affiliated with that organization, of any communication protected by the attorney-client privilege or any attorney work product." It also blocks the federal government from using waiver of the privilege as a basis for determining whether to bring charges or whether someone is cooperating with the government.

The Justice Department already has guidelines in place that prohibit prosecutors from considering waivers of the privilege as a litmus test for cooperation, according to the blog Main Justice. But the policy does not cover other investigatory agencies, such as the Securities and Exchange Commission, the Environmental Protection Agency and the Department of Housing and Urban Development.

Ironically, the Justice Department's guidelines were written in 2008 to counter a memorandum written by Attorney General Eric Holder when he was a deputy attorney general during the Clinton administration, Main Justice says. Holder's memo authorized U.S. attorneys to consider a corporation's waiver of attorney-client privilege as a factor when assessing cooperation in a criminal investigation.

The 2008 guidelines are not binding on Justice lawyers and the preamble to Scott's bill suggests this is a continuing concern. "The Department of Justice and other agencies have increasingly employed tactics that undermine the adversarial system of justice, such as encouring organizations to waive attorney-client privilege and work product protections to avoid indictment or other sanctions," the bill says.

ABA President Carolyn B. Lamm issued a statement yesterday applauding the introduction of the bill and urging Congress to approve it. "The legislation would create a sensible, uniform standard of conduct for all federal agencies and strike the proper balance between the legitimate needs of prosecutors and regulators, and the constitutional and fundamental legal rights of individuals and organizations," Lamm said.

Posted by Robert J. Ambrogi on December 18, 2009 at 03:25 PM | Permalink | Comments (0)

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