Senator Specter introduces legislation to protect attorney/client privilege

On December 7 Senate Judiciary Committee Chairman Arlen Specter introduced The Attorney-Client Privilege Protection Act of 2006 [PDF]. The American Bar Association and the Coalition to Preserve the Attorney-Client Privilege—which includes the U.S. Chamber of Commerce, the Association of Corporate Counsel, the National Association of Criminal Defense Lawyers, the ACLU, and other influential business and legal groups— had worked closely with Sen. Specter’s staff to craft the legislation.

The bill would prohibit federal prosecutors from seeking corporate waivers of attorney-client privilege in return for leniency in prosecutions, or from considering such waivers in making charging decisions, and protect employee rights in corporate investigations, overriding provisions of the so-called Thompson Memorandum of 2003, written by then-Deputy Attorney General Larry Thompson.

The bill “strikes the proper balance between the legitimate needs of prosecutors and regulators and the constitutional and fundamental legal rights of individuals and organizations,” said ABA President Karen J. Mathis in a statement, calling it “critically important to our nation's economic and legal health.”

On December 12 the Justice Department issued a new memorandum [PDF] revising its guidelines for prosecuting corporate fraud. The new guidelines create new approval requirements for federal prosecutors before they can request waivers of attorney/client privilege and work product protections. However, Mathis said in a statement that the new guidelines "fall far short of what is needed to prevent further erosion of fundamental attorney-client privilege, work product, and employee protections during government investigations."

Former Attorney General Richard Thornburgh, representing the ABA, appeared with Specter at a news conference announcing introduction of the bill. Although Specter filed the measure on the eve of adjournment of the 109th Congress, he vowed to reintroduce it when Congress returns in January.

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