Special Investigations Practice - House Moves Counsel Privilege Bill
On
November 13, 2007, the House of Representatives passed HR 3013, a bill to protect counsel privileges and other rights related to government investigations.
After the introductory passage stating the reason for the legislation:
- The Bill undertakes to protect both attorney-client privilege and attorney work product in civil and criminal investigations.
- The Bill incorporates the FRE 501 definition of privilege (based on principles of the common law as interpreted by the federal courts in the light of reason and experience), plus any other provision of FRE Article V.
- The Bill's definition of work product may, however, be confined only to opinion work product, thus excluding factual work product subject to discovery upon a showing specified in F.R. Civ. Pro 26(b)(3).
- The Bill prohibits law enforcement from demanding, requesting, or conditioning treatment on, disclosure of counsel privileged information;
- The Bill also prohibits conditioning any civil or criminal charging decision on assertions of counsel privileges, payment of legal fees, joint defense agreements, other agreements to share information, or failure to terminate an
employee invoking his constitutional rights or other legal protections.
- The Bill still allows voluntary disclosures and affirmatively removes from coverage any communications that are themselves unlawful.
HR 3013 is an explicit restriction on practices of the Department of Justice, the SEC and any other federal law enforcement agency.
While the Department of Justice has been the main target of objections to intrusions into counsel privileges in representation of private clients under the Holder, Thompson and McNulty memoranda, the SEC has had a long tradition
of requesting counsel privileged information prior to or independently of Justice Department investigations. This legislation would appear directly to reduce the SEC's practice of seeking or implying expected counsel privilege
waivers. Whether the allowance for voluntary disclosure of privileged information will effectively perpetuate the SEC practice remains to be seen.
The Bill now moves to the Senate where its fate is still unknown.
For more information please contact:
Stuart Pierson
202.274.2897
stuart.pierson@troutmansanders.com