House to Vote on the Attorney-Client Privilege Protection Act of 2007

The House of Representatives plans to vote next week on H.R. 3013, “The “Attorney-Client Privilege Protection Act of 2007.”  In anticipation of the measure, ABA President Neukom has forwarded a letter to all Representatives urging support for the bill.  See ABA Pres Letter Nov 8, 2007

The ABA also sent out the following egislative Action Alert, which has been forwarded to state and local bar leaders for a grass roots effort aimed at local Representatives

URGENT Legislative Action Alert

Call Your Representative Now to Protect the

Attorney-Client Privilege

To:      State and Local Bar Leaders

From:  Denise A. Cardman, Acting Director of the ABA Governmental Affairs Office

Next week the House will vote on legislation, H.R. 3013, the “Attorney-Client Privilege Protection Act of 2007.”  This bipartisan bill, introduced by Representative Bobby Scott (D-VA) and cosponsored by numerous Democratic and Republican leaders of the House Judiciary Committee, was approved overwhelmingly by the Committee on August 1 and is now ready for final House consideration.  The ABA needs your bar’s help to pass this critical legislation.

H.R. 3013 is a comprehensive reform measure designed to protect and restore the attorney-client privilege, the work product doctrine and employees’ Sixth and Fifth Amendment rights by reversing various federal agency policies that are undermining these fundamental protections.

The ABA strongly supports H.R. 3013 and has written all House members urging them to pass the legislation during next week’s floor vote.  The “ABA Fact Sheet” and the Talking Points below summarize the key points on the importance of this legislation.

URGENT ACTION REQUIRED

The House will vote on H.R. 3013 as early as November 12.  We urge you to call your Representatives today to urge them to vote for H.R. 3013.

When you call, please emphasize the particular Talking Points below that you feel will persuade your Representative to support the bill and explain that this issue is of great concern to the lawyers in your state, as well as to your state’s business community.

You can reach your Representative’s office by calling the Capitol operator at 202-224-3121.  When you reach each office, please ask to speak with the Representative’s judiciary counsel or legislative director.

After you call, please follow-up by faxing or e-mailing a letter to your Representative, c/o his or her judiciary counsel or legislative director, expressing your bar’s support for H.R. 3013.  Ask their office for the best fax number or e-mail address to use. 

For questions or comments, please contact Larson Frisby, ABA Senior Legislative Counsel, at 202-662-1098 or frisbyr@staff.abanet.org, or Julie M. Strandlie, Director, Grassroots Operations/Legislative Counsel at 202-662-1764 or jstrandlie@staff.abanet.org.

Thank you for participating in the ABA Grassroots Advocacy Program.  Your involvement as community leaders and constituents makes all the difference!

ABA TALKING POINTS

The ABA urges Representatives to vote for H.R. 3013 because:

 ·H.R. 3013 would roll back harmful provisions in the Justice Department’s 2006 “McNulty Memorandum” and other similar federal agency policies that are seriously eroding the attorney-client privilege, the work product doctrine and the constitutional rights of employees.  These policies pressure companies and other organizations to waive their privileges as a condition for receiving cooperation credit-and more favorable treatment-during investigations.  They also violate employees’ Sixth Amendment right to counsel and Fifth Amendment right against self-incrimination by pressuring companies not to pay their employees’ legal fees during investigations, to fire the employees for not waiving their rights, or to take other punitive actions against them before any guilt has been established.

 ·The Justice Department and other federal agencies have refused to reverse or fundamentally change their harmful privilege waiver or employee rights policies.  Although DOJ reluctantly issued new cooperation guidelines on December 12, 2006 as part of the “McNulty Memorandum,” the new policy falls far short of what is needed to prevent further erosion of fundamental attorney-client privilege, work product and employee legal protections.

 ·The McNulty Memorandum has not significantly reduced the incidence of government coerced waiver.  As demonstrated by former Delaware Chief Justice Norman Veasey’s recent report to Congress, federal prosecutors continue to routinely demand waiver of the privilege during investigations despite the new Justice Department policy.  As a result, the new policy continues to weaken the confidential relationship between companies and their lawyers, which, in turn, impedes the lawyers’ ability to conduct thorough internal investigations and effectively counsel compliance with the law.  This harms companies, employees and the investing public. 

 ·The McNulty Memorandum also continues to unfairly harm employees.  While the new DOJ policy bars prosecutors from requiring companies to not pay their employees’ legal fees in some cases, it continues to allow the practice in many instances.  The new DOJ policy and other similar federal policies also continue to pressure companies to not assist their employees with their legal defenses and to fire them for exercising their Fifth Amendment rights, long before any guilt has been shown.

 ·H.R. 3013 would strike the proper balance between effective law enforcement and the preservation of essential attorney-client privilege, work product and employee legal protections.  The bill would prevent federal agencies from pressuring companies or other organizations to waive their privileges or take unfair punitive actions against their employees as conditions for receiving cooperation credit during investigations.  At the same time, the legislation specifically preserves the ability of prosecutors to obtain the important, non-privileged factual materials they need to punish wrongdoers and enforce the law.

 ·H.R. 3013 enjoys widespread support.  In addition to the ABA and numerous state and local bars, the legislation is strongly supported by a broad coalition of business and legal groups ranging from the U.S. Chamber of Commerce to the ACLU, state and local bar associations, and numerous former senior Justice Department officials.

Copies of the key materials cited in this Action Alert and other additional information are available on the ABA’s website at: http://www.abanet.org/poladv/priorities/privilegewaiver/acprivilege.html.

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