Rep. Bobby Scott (D-Va.) has introduced legislation that would make it illegal for government lawyers to request a waiver of attorney-client privilege as a measure of cooperation in civil and criminal investigations.
The Justice Department’s corporate charging guidelines prohibit prosecutors from considering waivers as a litmus test for whether a company has been cooperative.
But the policy does not extend to other agencies such as the Securities and Exchange Commission, the Environmental Protection Agency and the Department of Housing and Urban Development.
The bill, like the guidelines, also bars government lawyers from penalizing corporations for paying employees’ legal fees, or for entering into joint defense agreements with employees.
The 2008 guidelines, known as the Filip memo, after former Deputy Attorney General Mark Filip, are not enforceable under law, and the Justice Department has opposed previous attempts to render them so.
The history of the guidelines begins with Attorney General Eric Holder, who as Deputy Attorney General during the Clinton administration signed a memo authorizing that a corporation’s waiver of attorney-client and work product privileges could be considered when assessing cooperation in a criminal investigation.
Holder has said he intended for prosecutors to ask for waivers in instances where a corporation was already cooperating with the government. But the memo became a tool of coercion, in some cases, with prosecutors demanding waivers as a condition of cooperation.
Scott’s bill, which was introduced on Wednesday, is identical to one passed by the House in the 2007. Sen. Arlen Specter (D-Pa.) introduced similar legislation in February.
White & Case LLP partner Carolyn Lamm, president of the American Bar Association, welcomed the legislation, saying it would create “a sensible, uniform standard of conduct for all federal agencies.”
See Lamm’s full statement below:
The American Bar Association applauds the introduction in the U.S. House of Representatives of legislation, H.R. 4326, designed to roll back federal agency policies that continue to erode fundamental attorney-client privilege, work product and employee legal protections.
The Attorney-Client Privilege Protection Act, introduced yesterday by Rep. Bobby Scott and cosponsored by numerous House Judiciary Committee members from both parties, recognizes the importance of the attorney-client privilege to our legal system, our nation’s economic health and our society as a whole. Protecting confidential attorney-client communications from government-compelled disclosure fosters voluntary compliance with the law, and that benefits everyone. Government tactics that coerce disclosure, on the other hand, undermine these benefits and our adversarial system of justice, and can unfairly threaten the very survival of organizations, including even the largest, most robust corporations. In addition, government policies that pressure companies to refuse to provide employees with legal assistance while investigations are pending, or to fire them for asserting their Fifth Amendment rights, weaken the constitutional presumption of innocence and undermine principles of sound corporate governance. The ripple effect harms employees, investors and all of society.
While the ABA supports the revised corporate charging guidelines issued by the Justice Department in August 2008 that expressly bar prosecutors from forcing organizations and their employees to waive fundamental protections during investigations, those guidelines do not have the assurance of permanence and do nothing to change the similar policies still in effect at the Securities and Exchange Commission, the Environmental Protection Agency, the Department of Housing and Urban Development, and other agencies. Such policies, like the Justice Department’s previous policy, pressure organizations to waive their privileges and violate their employees’ Sixth Amendment right to counsel and Fifth Amendment right against self-incrimination to receive cooperation credit during investigations.
H.R. 4326 — like the similar Senate bill, S. 445, introduced by Sen. Arlen Specter in February — would make the Justice Department’s reforms permanent, give them the full force of law and apply them to all federal agencies. 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.
The American Bar Association strongly urges Congress to approve this critical legislation as soon as possible.