The New Federal Counsel Privileges Protection Bill: The Saga Continues
Noting the constantly changing Justice Department privilege policies and the authority of the Department to change them at any time, Senator Arlen Specter has introduced S. 445, a counsel-privilege protection bill that elaborates on the provisions of H.R. 3013, which passed the House in November 2007 but failed to pass the Senate in the last Congress. The new bill:
- Applies to any federal criminal, civil, adjudicative, administrative, or investigative matter.
- Adopts the federal definitions of attorney-client privilege and at least opinion work product.
- Prohibits demanding, requesting, offering to reward, actually rewarding, or threatening adverse treatment for declining waiver of counsel privileges.
- Prohibits considering any of the following in making a charging, enforcement, or cooperation decision:
- A good faith assertion of counsel privilege;
- Payment of the legal expenses of current or former personnel;
- Engaging in a joint defense agreement with current or former personnel;
- Sharing “relevant information” with current or former personnel;
- Failing to sanction current or former personnel; or
- The “privileged or otherwise protected nature” of voluntarily disclosed material.
- Preserves affirmative government action where any of the foregoing conduct is “itself an offense,” e.g. the crime-fraud exception.
- Protects the government’s reasonable challenges to privilege assertions.
- Preserves truly voluntary and unsolicited privilege waivers.
- Defines protected organizations to exclude criminal enterprises and terrorist organizations.