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House Passes Attorney-Client Privilege Bill
The proposed Attorney-Client Privilege Protection Act of 2007 would prohibit the Justice Department and other federal agencies from: 1) demanding, requesting, or conditioning the treatment of a private party on the disclosure of communications protected by the attorney-client privilege or as attorney work product; and 2) taking into account when making any civil or criminal charging decision as to an organization or a person affiliated with it: a) any valid assertion of the attorney-client privilege or work-product protection; b) payment for attorneys' fees for an employee of the organization; c) a joint-defense or common-interest agreement between the organization and one of its employees; d) the sharing of information between the organization and one of its employees; or e) the organization's failure to take action adverse to an employee who has refused to cooperate with the government.
The bill (in identical Senate and House versions, S. 186 and H.R. 3013, 110th Cong.) is a response to the widespread criticisms of Justice Department tactics toward business corporations and other organizations that have been subjects of criminal investigations. Under the Thompson Memorandum on Principles of Federal Prosecution (Jan. 20, 2003), available at www.usdoj.gov/dag/cftf/corporate_guidelines.htm, DOJ prosecutors, in assessing an organization's 'cooperation' and thus its eligibility for a non-prosecution or deferred-prosecution agreement, commonly took into account the kinds of conduct the bill would prohibit federal agencies from considering.
On Sept. 12, 2006, the Senate Judiciary Committee held an oversight hearing on DOJ's intrusions into the attorney-client privilege. On Dec. 8, 2006, Sen. Arlen Specter (R-PA), then Chairman of the Committee, introduced his proposed Attorney-Client Privilege Protection Act. On Dec. 12, 2006, the McNulty Memorandum, available at www.usdoj.gov/dag/speeches/2006/mcnulty_memo.pdf, superseded the Thompson Memorandum and modified DOJ's policy on demands for waivers.
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