69–006 

110TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 110–445 

ATTORNEY-CLIENT PRIVILEGE PROTECTION ACT OF 2007 

NOVEMBER 13, 2007.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. CONYERS, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

[To accompany H.R. 3013] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 3013) to provide appropriate protection to attorney-client 

privileged communications and attorney work product, having considered the same, reports favorably thereon without amendment 

and recommends that the bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 1 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 5 

Committee Consideration ........................................................................................ 5 

Committee Votes ...................................................................................................... 5 

Committee Oversight Findings ............................................................................... 5 

New Budget Authority and Tax Expenditures ...................................................... 5 

Congressional Budget Office Cost Estimate .......................................................... 5 

Performance Goals and Objectives ......................................................................... 6 

Constitutional Authority Statement ...................................................................... 6 

Advisory on Earmarks ............................................................................................. 7 

Section-by-Section Analysis .................................................................................... 7 

Changes in Existing Law Made by the Bill, as Reported ..................................... 8 

PURPOSE AND SUMMARY

The centuries-old common law and constitutional protections of 

the attorney-client privilege and attorney work product doctrine are 

fundamental to our Nation’s system of justice. Unfortunately, recent governmental policies have given rise to a ‘‘culture of waiver’’ 


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1 Upjohn Co. v. U.S. 449 U.S. 383 (1981). 2 Association of Corporate Counsel Survey: Is the Attorney-Client Privilege Under Attack? 

(Apr. 6, 2005), at http://www.acc.com/Surveys/attyclient.pdf. 

that places the continuing vitality of these crucial protections in serious jeopardy. H.R. 3013, the ‘‘Attorney-Client Privilege Protection 

Act of 2007,’’ will restore judicial oversight to these protections, 

while preserving prosecutorial discretion necessary to fight corporate crime. 

BACKGROUND AND NEED FOR THE LEGISLATION

The United States Supreme Court’s landmark decision in Upjohn 

Co. v. United States confirmed that companies are entitled to the 

protections of the attorney-client privilege and work product doctrine.1 With respect to communications between a company’s attorney and its employees, the Court reasoned that the privilege operates in the public’s best interest by encouraging corporate executives and managers to seek legal advice in order to ensure compliance with the law in their day-to-day work. Protecting client confidences helps to foster timely reporting of problems so that they 

can be either avoided or quickly addressed and remedied, thereby 

promoting well-informed and responsible company practices. Without this protection of confidentiality, employees may be hesitant to 

bring their of concerns to counsel 

Recent empirical evidence supports the Supreme Court’s conclusions regarding the importance of attorney-client privilege in the 

organizational context. In 2005, a survey of more than 700 corporate lawyers yielded the following findings: 

• Reliance on privilege: In-house lawyers confirmed that their 

clients are aware of and rely on the privilege when consulting them (93% affirmed this statement for senior-level 

employees; 68% for mid- and lower-tier employees). 

• Absent privilege, clients will be less candid: If these communications are not protected, in-house lawyers believe, there 

will be a ‘‘chill’’ on the flow or candor of information from clients (95%). 

• Privilege facilitates delivery of legal services: 96% of in-house 

counsel respondents reported that the privilege and work 

product doctrines serve an important purpose in facilitating 

their work as company counsel. 

• Privilege enhances likelihood that clients will proactively seek 

advice: 94% of in-house counsel respondents believe that the 

existence of the attorney-client privilege increases the likelihood that company employees will come forward to discuss 

sensitive or difficult issues regarding the company’s compliance with law. 

• Privilege improves ability to implement effective compliance 

initiatives: 97% of corporate counsel surveyed believe that 

the privilege improves the lawyer’s ability to monitor, enforce, or improve company compliance initiatives.2

Like the attorney-client privilege, the work product doctrine facilitates open and frank discussion of issues among management, 

employees, and counsel in order to prepare for litigation, as the 

doctrine generally protects that discussion from disclosure. The 


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3 United States v. Amer. Tel & Tel. Co., 642 F.3d 1286, 1299 (D.C. Cir. 1980). 4 Hickman v. Taylor, 329 U.S. 495, 511 (1947). 5See, e.g., Memorandum from Deputy Attorney General Larry Thompson to Heads of Department Components and U.S. Attorney, ‘‘Principles of Federal Prosecution of Business Organizations’’ (Jan. 20, 2003). 

work product doctrine promotes the effectiveness of ‘‘adversary system by safeguarding the fruits of an attorney’s trial preparations 

from the discovery attempts of the opponent.’’ 3 If a corporation routinely waives the protection of the work product doctrine, employees may be hesitant to assist counsel in preparation for litigation, 

or may even be discouraged from seeking legal advice at all. As the 

Supreme Court observed sixty years ago, ‘‘[M]uch of what is now 

put down in writing would remain unwritten. . . . Inefficiency, unfairness and sharp practices would inevitably develop in the giving 

of legal advice and in the preparation of cases for trial . . . And 

the interests of the clients and the cause of justice would be poorly 

served.’’ 4

In recent years, however, certain government agencies have 

adopted policies that may place companies at greater risk of prosecution if they claim any of the fundamental protections embodied 

in the attorney-client privilege or work product doctrine. The genesis of these recent policies is a series of Department of Justice 

(‘‘DOJ’’) memoranda designed to provide prosecutors with factors to 

consider when determining whether to charge a corporation with a 

criminal offense. Since then, other Federal agencies have issued 

similar guidance to their prosecutors. 

The first of such memorandum was issued by Deputy Attorney 

General Eric Holder in 1999; it was superseded by a 2003 memorandum from Deputy Attorney General Larry Thompson, and then 

by a 2006 memorandum from Deputy Attorney General Paul 

McNulty. These memoranda list factors that Federal prosecutors 

should consider when charging companies. One of the factors is the 

corporation’s ‘‘timely and voluntary disclosure of wrongdoing and 

its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of corporate attorney-client and 

work product protections.’’ 5

In practice, these new policies have created a ‘‘culture of waiver,’’

despite the fact that their tone may be moderate and the officials 

representing these government agencies may stress their intent to 

implement them in reasonable ways. By creating a differential in 

the treatment of a company based upon whether that company 

waives—whether that differential is in the form of a ‘‘reward’’ for 

waiving or in the form of a ‘‘penalty’’ for not waiving—these policies put undue pressure on companies to relinquish fundamental 

rights. 

The coercive effect of these new policies is inherent in the differential itself, whereby companies are forced to waive regardless 

of whether the Federal prosecutor or investigator ‘‘demands’’ waiver, ‘‘requests’’ waiver, or does not explicitly mention waiver at all. 

The clear thrust of these new policies is that waiver is required to 

get ‘‘cooperation’’ credit, a crucial element in charging decisions. 

While aggressive enforcement against corporate wrongdoers is 

appropriate, stripping corporate targets of their fundamental rights 

is neither a necessary nor appropriate tactic for a government 

agency to employ in the course of an investigation, especially before 


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any finding of culpability. Companies may cooperate with government investigations in a variety of ways that will serve the interests of justice and the swift and sure prosecution of wrongdoers, 

without the need for waiver. 

Claims that corporate misconduct today is too complex, largescale, and difficult to unravel and analyze without coercing a waiver of these protections are unpersuasive. Immense and complex 

acts of fraud have been perpetrated since the days of the robber 

barons; today’s acts are nothing new. Moreover, it is well-settled 

that there is a wide range of prosecutorial tools available to prosecutors and investigators that do not require waiver and that have 

been used effectively for decades. While it may be more expeditious 

for a prosecutor or investigator to coerce waiver, taking such a 

short cut has not been necessary in the past and is not necessary 

now. 

H.R. 3013 is carefully crafted to restore judicial oversight to the 

important protections of attorney-client privilege and attorney work 

product doctrine, while preserving prosecutorial discretion necessary to fight corporate crime. Nothing in the legislation is intended to prevent a prosecutor or enforcement official from vigorously and professionally investigating the facts or bringing the 

guilty to justice. Likewise, the bill does not preclude or inhibit a 

company or an individual from cooperating with prosecutors in the 

conduct of an investigation. In short, the bill attempts to strike a 

balance between the promotion of effective law enforcement and 

compliance efforts, on the one hand, and the preservation of essential legal protections on the other. 

Under the bill, an agent or attorney of the United States may 

base cooperation credit on the facts that are disclosed, but is prohibited from basing cooperation credit upon whether or not the materials are protected by attorney-client privilege or attorney work 

product. As a result, an entity that voluntarily discloses should receive the same amount of cooperation credit for disclosing facts 

that happen to be contained in materials not protected by attorneyclient privilege or attorney work product as it would receive for disclosing identical facts that are contained in materials protected by 

attorney-client privilege or attorney work product. There should be 

no differentials in an assessment of cooperation (i.e., neither a 

credit nor a penalty) based upon whether or not the materials disclosed are protected by attorney-client privilege or attorney work 

product. 

Receipt by an agent or attorney of the United States of inadvertently disclosed materials that are protected by attorney-client privilege or attorney work product would not constitute a violation of 

the bill. Similarly, an agent or attorney of the United States does 

not violate it by propounding a general discovery request that does 

not specifically request materials protected by attorney-client privilege or attorney work product, even if certain protected materials 

may be responsive. 

Finally, the measure is not intended to limit any statutory authority of any agent or attorney of the United States to access material protected by attorney client privilege or attorney work product. Nor is it designed to prohibit an agent or attorney from charging an entity or individual under a Federal statute that makes the 

conduct in itself an independent offense. 


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HEARINGS

The Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held 1 day of hearings on the issue of the right to 

counsel, particularly in the context of corporate investigations, on 

March 8, 2007. Testimony was received and heard from Barry M. 

Sabin, Deputy Attorney General, U.S. Department of Justice; Andrew Weissman, Partner, Jenner and Block; Richard White, Senior 

Vice President, Secretary, and General Counsel, The Auto Club 

Group; William Sullivan, Jr., Partner, Winston & Strawn; and 

Karen J. Mathis, President, American Bar Association. 

COMMITTEE CONSIDERATION

On July 24, 2007, the Subcommittee on Crime, Terrorism, and 

Homeland Security met in open session and ordered the bill 

H.R.3013 favorably reported, by voice vote, a quorum being 

present. On August 1, 2007, the Committee met in open session 

and ordered the bill favorably reported without amendment, by 

voice vote, a quorum being present. 

COMMITTEE VOTES

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that there were 

no recorded votes during the Committee’s consideration of H.R. 

3013. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 3013, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 


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U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, August 17, 2007. 

Hon. JOHN CONYERS, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3013, the Attorney-Client 

Privilege Protection Act of 2007. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Leigh Angres, who can 

be reached at 226–2680. 

Sincerely, 

PETER R. ORSZAG, DIRECTOR. 

Enclosure 

cc: Honorable Lamar S. Smith. 

Ranking Member 

H.R. 3013—Attorney-Client Privilege Protection Act of 2007 

H.R. 3013 would prohibit federal prosecutors or agents, in a federal investigation, from demanding or requesting that a corporation 

waive its attorney-client privilege or from using a waiver as a factor in determining whether to indict the organization. The bill also 

would bar prosecutors from compelling a corporation to submit its 

attorneys’ litigation materials. Under the bill, a corporation could 

agree to waive its attorney-client privilege as under current law. 

CBO estimates that H.R. 3013 would have no significant impact 

on the federal budget. According to the Department of Justice, the 

bill could alter and possibly increase federal attorneys’ litigation 

duties. CBO estimates, however, that any resulting increase in federal spending would total less than $500,000 a year, assuming the 

availability of appropriated funds. Enacting H.R. 3013 would not 

affect direct spending or revenues. 

H.R. 3013 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of State, local, or tribal governments. 

The staff contact for this estimate is Leigh Angres who can be 

reached at 226–2860. The estimate was approved by Peter H. 

Fontaine, Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 3013, has as its 

primary objective the preservation of fundamental legal protections 

in the context of Federal investigation and enforcement matters. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in Article I, Section 8 of the Constitution. 


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ADVISORY ON EARMARKS

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 3013 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(d), 9(e), or 9(f) of Rule XXI. 

SECTION-BY-SECTION ANALYSIS

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. Short Title. Section 1 sets forth the bill’s short title as the 

‘‘Attorney-Client Privilege Protection Act of 2007.’’

Sec. 2. Findings and Purpose. Section 2 sets forth nine Congressional findings and explains that the purpose of the Act is 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.’’

Sec. 3. Disclosure of Attorney-Client Privilege or Advancement of 

Counsel Fees as Elements of Cooperation. Subsection (a) of section 

3 adds a new section 3014 to title 18 of the United States Code. 

New section 3014(a) defines the terms ‘‘attorney-client privilege’’

and ‘‘attorney work product.’’

New section 3014(b)(1) prohibits an attorney or agent of the 

United States in any Federal investigation or criminal or civil enforcement matter from demanding, requesting, or conditioning 

treatment on the disclosure of any communication protected by attorney-client privilege or attorney work product. New section 

3014(b)(2) prohibits an attorney or agent of the United States in 

any Federal investigation or criminal or civil enforcement matter 

relating to an organization or affiliated person from conditioning a 

charging decision upon, or using as a factor in determining cooperation, any one of five specified actions. These actions include: 

(1) making a valid assertion of attorney-client privilege or attorney work product; 

(2) providing counsel or contributing legal defense fees or expenses to an organization’s employee; 

(3) entering into joint defense, information sharing, or common 

interest agreements with an organization’s employee; 

(4) sharing relevant information with an organization’s employee; and 

(5) failing to terminate or otherwise sanction an organization’s 

employee because of that employee’s decision to exercise 

constitutional rights or other legal protections. 

New section 3014(b)(3) prohibits an attorney or agent of the 

United States in any Federal investigation or criminal or civil enforcement matter from demanding or requesting that an organization or affiliated person not take any of these five specified actions. 

New section 3014(c) provides that the Act does not prohibit an 

attorney or agent of the United States from requesting or seeking 

material that such an attorney or agent reasonably believes is not 

entitled to protection under the attorney-client privilege or attorney 

work product doctrine. 


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New section 3014(d) establishes that the Act is not intended to 

prohibit an organization from making, or an attorney or agent of 

the United States from accepting, a voluntary and unsolicited offer 

to share the organization’s internal investigation materials. 

Subsection (b) of section 3 of the Act amends the table of sections 

for chapter 201 of title 18 of the United States Code to add new 

section 3014. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italics 

and existing law in which no change is proposed is shown in 

roman): 

TITLE 18, UNITED STATES CODE 

* * * * * * * 

PART II—CRIMINAL PROCEDURE 

* * * * * * * 

CHAPTER 201—GENERAL PROVISIONS 

Sec. 

3001. Procedure governed by rules; scope, purpose and effect; definition of terms; 

local rules; forms-Rule. 

* * * * * * * 

3014. Preservation of fundamental legal protections and rights in the context of 

investigations and enforcement matters regarding organizations. 

* * * * * * * 

§ 3014. Preservation of fundamental legal protections and 

rights in the context of investigations and enforcement matters regarding organizations 

(a) DEFINITIONS.—In this section: 

(1) ATTORNEY-CLIENT PRIVILEGE.—The term ‘‘attorney-client 

privilege’’ means the attorney-client privilege as governed by the 

principles of the common law, as they may be interpreted by the 

courts of the United States in the light of reason and experience, 

and the principles of article V of the Federal Rules of Evidence. 

(2) ATTORNEY WORK PRODUCT.—The term ‘‘attorney work 

product’’ means materials prepared by or at the direction of an 

attorney in anticipation of litigation, particularly any such materials that contain a mental impression, conclusion, opinion, or 

legal theory of that attorney. 

(b) IN GENERAL.—In 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; 


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(2) condition a civil or criminal charging decision relating 

to a organization, or person affiliated with that organization, 

on, or use as a factor in determining whether an organization, 

or person affiliated with that organization, is cooperating with 

the Government— (A) any valid assertion of the attorney-client privilege 

or privilege for attorney work product; 

(B) the provision of counsel to, or contribution to the 

legal defense fees or expenses of, an employee of that organization; 

(C) the entry into a joint defense, information sharing, 

or common interest agreement with an employee of that organization if the organization determines it has a common 

interest in defending against the investigation or enforcement matter; 

(D) the sharing of information relevant to the investigation or enforcement matter with an employee of that organization; or 

(E) a failure to terminate the employment of or otherwise sanction any employee of that organization because of 

the decision by that employee to exercise the constitutional 

rights or other legal protections of that employee in response to a Government request; or 

(3) demand or request that an organization, or person affiliated with that organization, not take any action described in 

paragraph (2). 

(c) INAPPLICABILITY.—Nothing in this Act shall prohibit an 

agent or attorney of the United States from requesting or seeking 

any communication or material that such agent or attorney reasonably believes is not entitled to protection under the attorney-client 

privilege or attorney work product doctrine. 

(d) VOLUNTARY DISCLOSURES.—Nothing in this Act is intended 

to prohibit an organization from making, or an agent or attorney 

of the United States from accepting, a voluntary and unsolicited 

offer to share the internal investigation materials of such organization. 

* * * * * * * 

Æ 


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