II 

110TH CONGRESS 

2D SESSION S. 3217 

To provide appropriate protection to attorney-client privileged communications 

and attorney work product. 

IN THE SENATE OF THE UNITED STATES 

JUNE 26, 2008 

Mr. SPECTER (for himself, Mr. BIDEN, Mr. GRAHAM, Mr. KERRY, Mr. 

CORNYN, Mr. PRYOR, Mrs. DOLE, Ms. LANDRIEU, Mr. COCHRAN, Mr. 

CARPER, Mrs. MCCASKILL, and Mrs. FEINSTEIN) introduced the following bill; which was read twice and 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 2008’’. 

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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•S 3217 IS

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) Congress recognized that law enforcement 

21 can effectively investigate without attorney-client 

22 privileged information when it banned demands by 

23 the Attorney General for privileged materials in the 

24 Racketeer Influenced and Corrupt Organizations 


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1 Act. See section 1968(c)(2) of title 18, United 

2 States Code. 

3 (7) Despite the existence of numerous investiga4 tive tools that do not impact the attorney-client rela5 tionship, the Department of Justice and other agen6 cies have increasingly created and implemented poli7 cies that tend to undermine the adversarial system 

8 of justice, such as encouraging organizations to 

9 waive attorney-client privilege and work product pro10 tections to avoid indictment or other sanctions. 

11 (8) An indictment can have devastating con12 sequences on an organization, potentially eliminating 

13 the ability of the organization to survive post-indict14 ment or to dispute the charges against it at trial. 

15 (9) Waiver demands and related policies of Gov16 ernment agencies are encroaching on the constitu17 tional rights and other legal protections of employ18 ees. 

19 (10) As recognized throughout the common law, 

20 and specifically in the crime-fraud exception, the at21 torney-client privilege, work product doctrine, and 

22 payment of counsel fees cannot and shall not be 

23 used as devices to conceal wrongdoing or to cloak 

24 advice on evading the law. 


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

2 on each agency clear and practical limits designed to pre3 serve the attorney-client privilege and work product pro4 tections available to an organization and preserve the con5 stitutional rights and other legal protections available to 

6 employees of such an organization. 

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

8 ADVANCEMENT OF COUNSEL FEES AS ELE9 MENTS OF COOPERATION. 

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

11 States Code, is amended by inserting after section 3013 

12 the following: 

13 ‘‘§ 3014. Preservation of fundamental legal protec14 tions and rights in the context of inves15 tigations and enforcement matters re16 garding organizations 

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

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

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

20 privilege as governed by the principles of the com21 mon law, as they may be interpreted by the courts 

22 of the United States in the light of reason and expe23 rience, and the principles of article V of the Federal 

24 Rules of Evidence. 


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

2 ‘attorney work product’ means materials prepared 

3 by or at the direction of an attorney in anticipation 

4 of litigation, particularly any such materials that 

5 contain a mental impression, conclusion, opinion, or 

6 legal theory of that attorney. 

7 ‘‘(3) ORGANIZATION.—The term ‘organization’ 

8 does not include— 

9 ‘‘(A) a continuing criminal enterprise, as 

10 defined in section 408 of the Controlled Sub11 stances Act (21 U.S.C. 848); 

12 ‘‘(B) any group of individuals whose pri13 mary purpose is to obtain money through illegal 

14 acts; or 

15 ‘‘(C) any terrorist organization, as defined 

16 in section 2339B. 

17 ‘‘(b) ATTORNEY-CLIENT PRIVILEGE AND ATTORNEY

18 WORK PRODUCT.— 

19 ‘‘(1) IN GENERAL.—In any Federal investiga20 tion or criminal or civil enforcement matter, includ21 ing any form of administrative proceeding or adju22 dication, an agent or attorney of the United States 

23 shall not— 

24 ‘‘(A) demand or request that an organiza25 tion, or a current or former employee or agent 


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1 of such organization, waive the protections of 

2 the attorney-client privilege or the attorney 

3 work product doctrine; 

4 ‘‘(B) offer to reward or actually reward an 

5 organization, or current or former employee or 

6 agent of such organization, for waiving the pro7 tections of the attorney-client privilege or the 

8 attorney work product doctrine; or 

9 ‘‘(C) threaten adverse treatment or penal10 ize an organization, or current or former em11 ployee or agent of such organization, for declin12 ing to waive the protections of the attorney-cli13 ent privilege or the attorney work product doc14 trine. 

15 ‘‘(2) CHARGING DECISIONS.— 

16 ‘‘(A) IN GENERAL.—In any Federal inves17 tigation or criminal or civil enforcement matter, 

18 including any form of administrative proceeding 

19 or adjudication, an agent or attorney of the 

20 United States shall not consider any conduct 

21 described in subparagraph (B) in— 

22 ‘‘(i) making a civil or criminal charg23 ing or enforcement decision relating to an 

24 organization, or a current or former em25 ployee or agent of such organization; or 


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1 ‘‘(ii) determining whether an organi2 zation, or a current or former employee or 

3 agent of such organization, is cooperating 

4 with the Government. 

5 ‘‘(B) CONDUCT.—The conduct described in 

6 this subparagraph is— 

7 ‘‘(i) the valid assertion of the protec8 tion of the attorney-client privilege or at9 torney work product doctrine; 

10 ‘‘(ii) the provision of counsel to, or 

11 contribution to the legal defense fees or ex12 penses of, a current or former employee or 

13 agent of an organization; 

14 ‘‘(iii) the entry into, or existence of, a 

15 valid joint defense, information sharing, or 

16 common interest agreement between an or17 ganization and a current or former em18 ployee or agent of such organization, or 

19 among its current or former employees; 

20 ‘‘(iv) except as provided in subsection 

21 (f), the sharing of relevant information in 

22 anticipation of or in response to an inves23 tigation or enforcement matter between an 

24 organization and a current or former emVerDate Aug 31 2005 02:56 Jul 01, 2008 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3217.IS S3217

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1 ployee or agent of such organization, or 

2 among its current or former employees; or 

3 ‘‘(v) the failure to terminate the em4 ployment or affiliation of or otherwise 

5 sanction any employee or agent of that or6 ganization because of the decision by that 

7 employee or agent to exercise personal con8 stitutional rights or other legal protections 

9 in response to a Government request. 

10 ‘‘(3) DEMANDS AND REQUESTS.—In any Fed11 eral investigation or criminal or civil enforcement 

12 matter, including any form of administrative pro13 ceeding or adjudication, an agent or attorney of the 

14 United States shall not demand or request an orga15 nization, or a current or former employee or agent 

16 of such organization, to refrain from the conduct de17 scribed in paragraph (2)(B). 

18 ‘‘(c) INAPPLICABILITY.—Nothing in this section shall 

19 be construed to prohibit an agent or attorney of the 

20 United States from requesting or seeking any communica21 tion or material that— 

22 ‘‘(1) an agent or attorney of ordinary sense and 

23 understanding would not know is subject to a claim 

24 of attorney-client privilege or attorney work product; 


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1 ‘‘(2) an agent or attorney of ordinary sense and 

2 understanding would reasonably believe is not enti3 tled to protection under the attorney-client privilege 

4 or attorney work product doctrine; or 

5 ‘‘(3) would not be privileged from disclosure if 

6 demanded by a subpoena duces tecum issued by a 

7 court of the United States in aid of a grand jury in8 vestigation. 

9 ‘‘(d) VOLUNTARY DISCLOSURES.— 

10 ‘‘(1) IN GENERAL.—Nothing in this section 

11 may be construed to prohibit an organization from 

12 making, or an agent or attorney of the United 

13 States from accepting, a voluntary and unsolicited 

14 offer to waive the protections of the attorney-client 

15 privilege or attorney work product doctrine. 

16 ‘‘(2) CONSIDERATION IN CHARGING DECI17 SIONS.—An agent or attorney of the United States 

18 shall not consider the fact that material provided as 

19 described in paragraph (1), or any material redacted 

20 therefrom, had been subject to a nonfrivolous claim 

21 of attorney-client privilege or work-product protec22 tion in— 

23 ‘‘(A) making a civil or criminal charging or 

24 enforcement decision relating to an organizaVerDate Aug 31 2005 02:56 Jul 01, 2008 Jkt 069200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3217.IS S3217

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1 tion, or a current or former employee or agent 

2 of such organization; or 

3 ‘‘(B) determining whether an organization, 

4 or a current or former employee or agent of 

5 such organization, is cooperating with the Gov6 ernment. 

7 ‘‘(3) OTHER CONSIDERATION.—Subject to the 

8 limitations under subsection (b), an agent or attor9 ney of the United States may consider a voluntary 

10 disclosure described in paragraph (1) for any other 

11 purpose that is otherwise lawful. 

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

13 ACCESS OTHERWISE PERMITTED.—This section does not 

14 affect any other Federal statute that authorizes, in the 

15 course of an examination or inspection, an agent or attor16 ney of the United States to require or compel the produc17 tion of attorney-client privileged material or attorney work 

18 product. 

19 ‘‘(f) CHARGING DECISIONS NOT TO INCLUDE DECI20 SIONS TO CHARGE UNDER INDEPENDENT PROHIBI21 TIONS.—Subsection (b)(2) shall not be construed to pro22 hibit charging an organization, or a current or former em23 ployee or agent of such organization, for conduct described 

24 in clause (ii), (iii), or (iv) of subparagraph (B) of that 


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1 subsection under a Federal law which makes that conduct 

2 in itself an offense.’’. 

3 (b) CONFORMING AMENDMENT.—The table of sec4 tions for chapter 201 of title 18, United States Code, is 

5 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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