Attorney-Client Privilege Protection Act of 2006 - Amends the federal criminal code to prohibit any U.S. agent or attorney, in any federal investigation or criminal or civil enforcement matter, from demanding, requesting, or conditioning treatment on the disclosure by an organization (or affiliated person) of any communication protected by the attorney-client privilege or any attorney work product.
Prohibits a U.S. agent or attorney from conditioning a civil or criminal charging decision relating to an organization (or affiliated person) on one or more specified actions, or from using one or more such actions as a factor in determining whether an organization or affiliated person is cooperating with the government.
Numbers among the actions a U.S. agent or attorney may not use as a charging decision condition or a cooperation-determining factor: (1) any valid assertion of the attorney-client privilege or privilege for attorney work product; (2) the provision of counsel to, or contribution to the legal defense fees or expenses of, an employee of the organization; (3) entry into a joint-defense, information-sharing, or common-interest agreement with an employee of the organization if the organization determines it has a common interest in defending against the investigation or enforcement matter; (4) the sharing of relevant information with an employee; or (5) a failure to terminate an employee's employment, or otherwise sanction an employee, because of the employee's decision to exercise his or her constitutional rights or other legal protections in response to a government request.
Prohibits a U.S. agent or attorney from demanding or requesting that an organization or an affiliated person not take any such action.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 30 Introduced in Senate (IS)]
109th CONGRESS
2d Session
S. 30
To provide appropriate protection to attorney-client privileged
communications and attorney work product.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 8, 2006
Mr. Specter introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide appropriate protection to attorney-client privileged
communications and attorney work product.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Attorney-Client Privilege Protection
Act of 2006''.
SEC. 2. FINDINGS AND PURPOSE.
(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.
SEC. 3. DISCLOSURE OF ATTORNEY-CLIENT PRIVILEGE OR ADVANCEMENT OF
COUNSEL FEES AS ELEMENTS OF COOPERATION.
(a) In General.--Chapter 201 of title 18, United States Code, is
amended by inserting after section 3013 the following:
``Sec. 3014. Preservation of fundamental legal protections and rights
in the context of investigations and enforcement matters
regarding organizations
``(a) Definitions.--In this section:
``(1) Attorney-client privilege.--The term `attorney-client
privilege' means the attorney-client privilege as governed by
the principles of the common law, as they may be interpreted by
the courts of the United States in the light of reason and
experience, and the principles of article V of the Federal
Rules of Evidence.
``(2) Attorney work product.--The term `attorney work
product' means materials prepared by or at the direction of an
attorney in anticipation of litigation, particularly any such
materials that contain a mental impression, conclusion,
opinion, or legal theory of that attorney.
``(b) In General.--In any Federal investigation or criminal or
civil enforcement matter, an agent or attorney of the United States
shall not--
``(1) 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;
``(2) condition a civil or criminal charging decision
relating to a organization, or person affiliated with that
organization, on, or use as a factor in determining whether an
organization, or person affiliated with that organization, is
cooperating with the Government--
``(A) any valid assertion of the attorney-client
privilege or privilege for attorney work product;
``(B) the provision of counsel to, or contribution
to the legal defense fees or expenses of, an employee
of that organization;
``(C) the entry into a joint defense, information
sharing, or common interest agreement with an employee
of that organization if the organization determines it
has a common interest in defending against the
investigation or enforcement matter;
``(D) the sharing of information relevant to the
investigation or enforcement matter with an employee of
that organization; or
``(E) a failure to terminate the employment of or
otherwise sanction any employee of that organization
because of the decision by that employee to exercise
the constitutional rights or other legal protections of
that employee in response to a Government request; or
``(3) demand or request that an organization, or person
affiliated with that organization, not take any action
described in paragraph (2).
``(c) Inapplicability.--Nothing in this Act shall prohibit an agent
or attorney of the United States from requesting or seeking any
communication or material that such agent or attorney reasonably
believes is not entitled to protection under the attorney-client
privilege or attorney work product doctrine.
``(d) Voluntary Disclosures.--Nothing in this Act is intended to
prohibit an organization from making, or an agent or attorney of the
United States from accepting, a voluntary and unsolicited offer to
share the internal investigation materials of such organization.''.
(b) Conforming Amendment.--The table of sections for chapter 201 of
title 18, United States Code, is amended by adding at the end the
following:
``3014. Preservation of fundamental legal protections and rights in the
context of investigations and enforcement
matters regarding organizations.''.
<all>
Introduced in Senate
Read twice and referred to the Committee on the Judiciary.
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