Specter Bill Protecting Attorney-client Privilege

Senator Arlen Specter introduced a new bill to enact the Attorney-Client Privilege Protection Act.” The bill aims to temper prosecutors who might invoke guidance from the Thompson Memorandum to seek waiver of privileges and use the response of the suspect corporation as a means to gauge the extent of cooperation. Other federal agencies have followed suit, though the critics have focused mainly on the practices of federal prosecutors. ACC issued a press release, as did the ABA, in a case of dueling press releases.

The question remains, however, whether the “specter” of this proposed legislation will change how the government handles investigations. Even if coerced waiver becomes a violation of federal law, no law prohibits voluntary waiver and one will never know a prosecutor’s mindset or the cause and effect in circumstances where a company decides not to give investigators access to work product and privileged communications. The battle and debate on this question is far from over, but this is definitely a step in the right direction.

Expect more focus to this debate over the coming weeks. On January 29, 2007, in New York City, the Judicial Conference Advisory Committee on Evidence Rules is conducting public hearings on proposed Rule 502 of the Federal Rules of Evidence. The amendments proposed include selective and inadvertent waiver of privilege, and it should be interesting to follow the debate in light of this new development.

The Decline of Attorney-Client Privilege in the Corporate Context (survey results)

Testimony from the Senate Judiciary Committee hearing

Transcripts and Testimony from the House Judiciary Committee hearing

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