I 

111TH CONGRESS 

1ST SESSION H. R. 4326 

To provide appropriate protection to attorney-client privileged communications 

and attorney work product. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 16, 2009 

Mr. SCOTT of Virginia (for himself, Mr. CONYERS, Mr. SMITH of Texas, Mr. 

NADLER of New York, Mr. DELAHUNT, Mr. COBLE, and Mr. DANIEL E. 

LUNGREN of California) introduced the following bill; which was referred 

to the Committee on the Judiciary 

A BILL 

To provide appropriate protection to attorney-client privileged 

communications and attorney work product. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Attorney-Client Privi5 lege Protection Act of 2009’’. 

6 SEC. 2. FINDINGS AND PURPOSE. 

7 (a) FINDINGS.—Congress finds the following: 

8 (1) Justice is served when all parties to litiga9 tion are represented by experienced diligent counsel. 


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1 (2) Protecting attorney-client privileged commu2 nications from compelled disclosure fosters voluntary 

3 compliance with the law. 

4 (3) To serve the purpose of the attorney-client 

5 privilege, attorneys and clients must have a degree 

6 of confidence that they will not be required to dis7 close privileged communications. 

8 (4) The ability of an organization to have effec9 tive compliance programs and to conduct com10 prehensive internal investigations is enhanced when 

11 there is clarity and consistency regarding the attor12 ney-client privilege. 

13 (5) Prosecutors, investigators, enforcement offi14 cials, and other officers or employees of Government 

15 agencies have been able to, and can continue to, con16 duct their work while respecting attorney-client and 

17 work product protections and the rights of individ18 uals, including seeking and discovering facts crucial 

19 to the investigation and prosecution of organizations. 

20 (6) Despite the existence of these legitimate 

21 tools, the Department of Justice and other agencies 

22 have increasingly employed tactics that undermine 

23 the adversarial system of justice, such as encour24 aging organizations to waive attorney-client privilege 


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1 and work product protections to avoid indictment or 

2 other sanctions. 

3 (7) An indictment can have devastating con4 sequences on an organization, potentially eliminating 

5 the ability of the organization to survive post-indict6 ment or to dispute the charges against it at trial. 

7 (8) Waiver demands and other tactics of Gov8 ernment agencies are encroaching on the constitu9 tional rights and other legal protections of employ10 ees. 

11 (9) The attorney-client privilege, work product 

12 doctrine, and payment of counsel fees shall not be 

13 used as devices to conceal wrongdoing or to cloak 

14 advice on evading the law. 

15 (b) PURPOSE.—It is the purpose of this Act to place 

16 on each agency clear and practical limits designed to pre17 serve the attorney-client privilege and work product pro18 tections available to an organization and preserve the con19 stitutional rights and other legal protections available to 

20 employees of such an organization. 


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1 SEC. 3. DISCLOSURE OF ATTORNEY-CLIENT PRIVILEGE OR 

2 ADVANCEMENT OF COUNSEL FEES AS ELE3 MENTS OF COOPERATION. 

4 (a) IN GENERAL.—Chapter 201 of title 18, United 

5 States Code, is amended by inserting after section 3013 

6 the following: 

7 ‘‘§ 3014. Preservation of fundamental legal protec8 tions and rights in the context of inves9 tigations and enforcement matters re10 garding organizations 

11 ‘‘(a) DEFINITIONS.—In this section: 

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

13 ‘attorney-client privilege’ means the attorney-client 

14 privilege as governed by the principles of the com15 mon law, as they may be interpreted by the courts 

16 of the United States in the light of reason and expe17 rience, and the principles of article V of the Federal 

18 Rules of Evidence. 

19 ‘‘(2) ATTORNEY WORK PRODUCT.—The term 

20 ‘attorney work product’ means materials prepared 

21 by or at the direction of an attorney in anticipation 

22 of litigation, particularly any such materials that 

23 contain a mental impression, conclusion, opinion, or 

24 legal theory of that attorney. 


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1 ‘‘(b) IN GENERAL.—In any Federal investigation or 

2 criminal or civil enforcement matter, an agent or attorney 

3 of the United States shall not— 

4 ‘‘(1) demand, request, or condition treatment 

5 on the disclosure by an organization, or person affili6 ated with that organization, of any communication 

7 protected by the attorney-client privilege or any at8 torney work product; 

9 ‘‘(2) condition a civil or criminal charging deci10 sion relating to a organization, or person affiliated 

11 with that organization, on, or use as a factor in de12 termining whether an organization, or person affili13 ated with that organization, is cooperating with the 

14 Government— 

15 ‘‘(A) any valid assertion of the attorney-cli16 ent privilege or privilege for attorney work 

17 product; 

18 ‘‘(B) the provision of counsel to, or con19 tribution to the legal defense fees or expenses 

20 of, an employee of that organization; 

21 ‘‘(C) the entry into a joint defense, infor22 mation sharing, or common interest agreement 

23 with an employee of that organization if the or24 ganization determines it has a common interest 


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1 in defending against the investigation or en2 forcement matter; 

3 ‘‘(D) the sharing of information relevant to 

4 the investigation or enforcement matter with an 

5 employee of that organization; or 

6 ‘‘(E) a failure to terminate the employ7 ment of or otherwise sanction any employee of 

8 that organization because of the decision by 

9 that employee to exercise the constitutional 

10 rights or other legal protections of that em11 ployee in response to a Government request; or 

12 ‘‘(3) demand or request that an organization, or 

13 person affiliated with that organization, not take any 

14 action described in paragraph (2). 

15 ‘‘(c) INAPPLICABILITY.—Nothing in this Act shall 

16 prohibit an agent or attorney of the United States from 

17 requesting or seeking any communication or material that 

18 such agent or attorney reasonably believes is not entitled 

19 to protection under the attorney-client privilege or attor20 ney work product doctrine. 

21 ‘‘(d) VOLUNTARY DISCLOSURES.—Nothing in this 

22 Act is intended to prohibit an organization from making, 

23 or an agent or attorney of the United States from accept24 ing, a voluntary and unsolicited offer to share the internal 

25 investigation materials of such organization. 


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1 ‘‘(e) NOT TO AFFECT EXAMINATION OR INSPECTION

2 ACCESS OTHERWISE PERMITTED.—This Act does not af3 fect any other Federal statute that may authorize, in the 

4 course of an examination or inspection, an agent or attor5 ney of the United States to require or compel the produc6 tion of attorney-client privileged material or attorney work 

7 product. 

8 ‘‘(f) CHARGING DECISIONS NOT TO INCLUDE DECI9 SIONS TO CHARGE UNDER INDEPENDENT PROHIBI10 TIONS.—It is not conditioning a charging decision under 

11 subsection (b)(2) of this section to charge an organization 

12 or person affiliated with that organization for conduct de13 scribed in subparagraph (B), (C), or (D) of that sub14 section under a Federal law which makes that conduct in 

15 itself an offense.’’. 

16 (b) CONFORMING AMENDMENT.—The table of sec17 tions for chapter 201 of title 18, United States Code, is 

18 amended by adding at the end the following: 

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

of investigations and enforcement matters regarding organizations.’’. 

Æ 


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