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Managing America: Legal

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Week Ending November 16, 2007

H.R.3013 To provide appropriate protection to attorney-client privileged communications and attorney work product.

The bill aims to establish clear and practical limits designed to preserve the attorney-client privilege and work product protections available to an organization and preserve the constitutional rights and other legal protections available to employees of an organization.

The bill claims that the Justice Department and other agencies have increasingly employed tactics that undermine the adversarial system of justice, such as encouraging organizations to waive attorney-client privilege and work product protections to avoid indictment or other sanctions. Indictments, the bill holds can have devastating consequences on an organization, potentially eliminating the ability of the organization to survive post-indictment or to dispute charges against it at trial.

US agents or attorneys in any Federal investigation or criminal or civil enforcement may not demand, request or condition treatment on the disclosure of any communication protected by the attorney-client privilege.

Further, the US government agents or attorneys may not condition a civil or criminal charge based on a person cooperating with the government. Those conditions or determining factors include any valid assertion of the attorney-client privilege or privilege for an attorney work project, provision of counsel to or contribution to the legal defense fees or expenses, entry into joint-defense, information sharing, or common-interest agreement or a failure to terminate an employee’s employment or otherwise sanction an employee because of the employees decision to exercise his or her constitutional rights in response to a government request.

Sponsor:  Rep. Robert Scott (VA-3^rd)

Vote: Passed House by voice vote November 13, 2007

Cost to the taxpayers: No discernible cost

Earmark Certification:   Not applicable to this bill/

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MORE INFORMATION

(a) Findings- Congress finds the following:

(1) Justice is served when all parties to litigation are represented by experienced diligent counsel.

(2) Protecting attorney-client privileged communications from compelled disclosure fosters voluntary compliance with the law.

(3) To serve the purpose of the attorney-client privilege, attorneys and clients must have a degree of confidence that they will not be required to disclose privileged communications.

(4) The ability of an organization to have effective compliance programs and to conduct comprehensive internal investigations is enhanced when there is clarity and consistency regarding the attorney-client privilege.

(5) Prosecutors, investigators, enforcement officials, and other officers or employees of Government agencies have been able to, and can continue to, conduct their work while respecting attorney-client and work product protections and the rights of individuals, including seeking and discovering facts crucial to the investigation and prosecution of organizations.

(6) Despite the existence of these legitimate tools, the Department of Justice and other agencies have increasingly employed tactics that undermine the adversarial system of justice, such as encouraging organizations to waive attorney-client privilege and work product protections to avoid indictment or other sanctions.

(7) An indictment can have devastating consequences on an organization, potentially eliminating the ability of the organization to survive post-indictment or to dispute the charges against it at trial.

(8) Waiver demands and other tactics of Government agencies are encroaching on the constitutional rights and other legal protections of employees.

(9) The attorney-client privilege, work product doctrine, and payment of counsel fees shall not be used as devices to conceal wrongdoing or to cloak advice on evading the law.

(b) Purpose- It is the purpose of this Act to place on each agency clear and practical limits designed to preserve the attorney-client privilege and work product protections available to an organization and preserve the constitutional rights and other legal protections available to employees of such an organization.

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