Passed in the House of Representatives (H.R. 3013) in November 2007, and pending in the Senate (S. 186), this proposed legislation is an attempt to counter the effects of years of enforcement policy at the Department of Justice that created incentives for corporations to waive the attorney-client privilege. If passed, the Act will prohibit prosecutors, in any federal investigation or criminal or civil enforcement matter, from demanding, requesting, or conditioning treatment on the disclosure by an organization of any communication protected by the attorney-client privilege or any attorney work product.
On June 20, 2008, a letter endorsed by a group of 32 former U.S. attorneys asked Sen. Patrick Leahy (D–Vt.)—the Senate Judiciary Committee chairman—for the Senate’s support for this Act. The letter noted that the “widespread practice of requiring waiver has led to the erosion not only of the [attorney-client] privilege itself, but also to the constitutional rights of the employees who are caught up, often tangentially, in business investigations.”
On June 28, 2008, the legislation was reintroduced in the Senate by Sen. Arlen Specter (R–Pa.), with some additional changes (S. 3217). The revised legislation is named the “Attorney-Client Privilege Protection Act of 2008.”
Should the legislation become law, it will remove a key tool prosecutors have used to force targets to waive the attorney-client privilege. Corporations that assert the privilege will have a lower risk of appearing uncooperative. Additionally, this Act will encourage employees of these corporations to seek counsel without the risk of such communications being revealed to federal prosecutors in the course of an investigation.