On January 4, 2007, Senator Specter introduced the Attorney-Client Privilege Act of 2007 (“Act”), presumably in response to the McNulty Memorandum. The purpose of the Act is “to place on each agency clear and practical limits designed to preserve the attorney-client privilege and work product protections available to an organization and preserve the constitutional rights and other
legal protections available to employees of such an organization.” Act, at § 2(b). The Act applies to “any Federal investigation or criminal or civil enforcement matter.” Act, at § 3(b). It covers “any agent or attorney of the United States.” Id. The Act prohibits federal officials from conditioning treatment of an organization based on a waiver. Act, at § 3(b)(1). The Act also provides that federal officials cannot decide whether or not to charge an organization or its employee if the organization: (1) asserts the attorney-client and/or work-product privileges; (2) provides counsel to or contributes to the legal fees of an employee; (3) enters into a joint-defense, information sharing, or common interest agreement with an employee if the organization and the employee have a common interest in defending themselves; (4) shares information that is relevant to the investigation or enforcement matter with an employee; or (5) fails to terminate or sanction an employee based on his decision to exercise his constitutional rights or other legal protections. Act, at § 3(b)(2).
The Advisory Committee on Evidence Rules in proposed Rule 502 considered including a “selective waiver” provision and sought public comment on its merits. The proposed Rule 502(c) released for public comment provided that a disclosure to a federal regulator does not operate as a waiver in favor of non-governmental persons or entities. See Memorandum from Honorable Jerry E. Smith to Honorable David F. Levi (May 15, 2007) (available at http://www.uscourts.gov/rules/Reports/EV05-2007.pdf). In April, 2007, however, the Judicial Conference Advisory Committee voted to reject selective waiver protections under the proposed Rule 502(c). See National Law Journal, Federal Court Review, Monday May 14, 2007.
More later.
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WDJiii
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