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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Attorney-Client Privi-
lege Protection Act of 2009’’. 
SEC. 2. FINDINGS AND PURPOSE. 
(a) FINDINGS.—Congress finds the following: 
(1) Justice is served when all parties to litiga-
tion are represented by experienced diligent counsel. 
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(2) Protecting attorney-client privileged commu-
nications from compelled disclosure fosters voluntary 
compliance with the law. 
(3) To serve the purpose of the attorney-client 
privilege, attorneys and clients must have a degree 
of confidence that they will not be required to dis-
close privileged communications. 
(4) The ability of an organization to have effec-
tive compliance programs and to conduct com-
prehensive internal investigations is enhanced when 
there is clarity and consistency regarding the attor-
ney-client privilege. 
(5) Prosecutors, investigators, enforcement offi-
cials, and other officers or employees of Government 
agencies have been able to, and can continue to, con-
duct their work while respecting attorney-client and 
work product protections and the rights of individ-
uals, including seeking and discovering facts crucial 
to the investigation and prosecution of organizations. 
(6) Despite the existence of these legitimate 
tools, the Department of Justice and other agencies 
have increasingly employed tactics that undermine 
the adversarial system of justice, such as encour-
aging organizations to waive attorney-client privilege 
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and work product protections to avoid indictment or 
other sanctions. 
(7) An indictment can have devastating con-
sequences on an organization, potentially eliminating 
the ability of the organization to survive post-indict-
ment or to dispute the charges against it at trial. 
(8) Waiver demands and other tactics of Gov-
ernment agencies are encroaching on the constitu-
tional rights and other legal protections of employ-
ees. 
(9) The attorney-client privilege, work product 
doctrine, and payment of counsel fees shall not be 
used as devices to conceal wrongdoing or to cloak 
advice on evading the law. 
(b) PURPOSE.—It is the purpose of this Act to place 
on each agency clear and practical limits designed to pre-
serve the attorney-client privilege and work product pro-
tections available to an organization and preserve the con-
stitutional rights and other legal protections available to 
employees of such an organization. 
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SEC. 3. DISCLOSURE OF ATTORNEY-CLIENT PRIVILEGE OR 
ADVANCEMENT OF COUNSEL FEES AS ELE-
MENTS OF COOPERATION. 
(a) IN GENERAL.—Chapter 201 of title 18, United 
States Code, is amended by inserting after section 3013 
the following: 
‘‘§ 3014. Preservation of fundamental legal protec-
tions and rights in the context of inves-
tigations and enforcement matters re-
garding 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 com-
mon law, as they may be interpreted by the courts 
of the United States in the light of reason and expe-
rience, 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. 
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‘‘(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 affili-
ated with that organization, of any communication 
protected by the attorney-client privilege or any at-
torney work product; 
‘‘(2) condition a civil or criminal charging deci-
sion relating to a organization, or person affiliated 
with that organization, on, or use as a factor in de-
termining whether an organization, or person affili-
ated with that organization, is cooperating with the 
Government— 
‘‘(A) any valid assertion of the attorney-cli-
ent privilege or privilege for attorney work 
product; 
‘‘(B) the provision of counsel to, or con-
tribution to the legal defense fees or expenses 
of, an employee of that organization; 
‘‘(C) the entry into a joint defense, infor-
mation sharing, or common interest agreement 
with an employee of that organization if the or-
ganization determines it has a common interest 
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in defending against the investigation or en-
forcement 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 employ-
ment 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 em-
ployee 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 attor-
ney 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 accept-
ing, a voluntary and unsolicited offer to share the internal 
investigation materials of such organization. 
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‘‘(e) NOT TO AFFECT EXAMINATION OR INSPECTION 
ACCESS OTHERWISE PERMITTED.—This Act does not af-
fect any other Federal statute that may authorize, in the 
course of an examination or inspection, an agent or attor-
ney of the United States to require or compel the produc-
tion of attorney-client privileged material or attorney work 
product. 
‘‘(f) CHARGING DECISIONS NOT TO INCLUDE DECI-
SIONS TO CHARGE UNDER INDEPENDENT PROHIBI-
TIONS.—It is not conditioning a charging decision under 
subsection (b)(2) of this section to charge an organization 
or person affiliated with that organization for conduct de-
scribed in subparagraph (B), (C), or (D) of that sub-
section under a Federal law which makes that conduct in 
itself an offense.’’. 
(b) CONFORMING AMENDMENT.—The table of sec-
tions for chapter 201 of title 18, United States Code, is 
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 organiza-
tions.’’. 
Æ 
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