Thursday, December 7, 2006
Senator Arlen Specter proposed a bill today to "provide appropriate protection to attorney-client privileged communications and attorney-work product." This legislation titled "The Attorney Client Privilege Protection Act of 2006," has nine findings including that "[w]aiver demands and other tactics of Government agencies are encroaching on the constitutional rights and other legal protections of employees."
In part (b) it provides the purpose of the Act:
"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."
The Act explicitly states that "[i]n 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;...."
Clearly this legislation is important. It took an act of Congress to subject federal prosecutors to ethics rules (The McDade Act). Unfortunately, it will now take an act of Congress to require that prosecutors cease improperly using pressure to secure waivers of the attorney-client privilege. Marty Pinales, President of the National Association of Criminal Defense Lawyers stated - " DOJ's high-handed practice of forcing companies at gunpoint to abrogate attorney-client privilege and sacrifice employees' ability to speak candidly with company lawyers without fear that their statements will be handed over to the government is as grossly unfair to the corporation and shareholders as it is to the company's employees.” (see here).
A Copy of this new proposed legislation is here -