In Support of H.R. 3013, the Attorney-Client Privilege Protection Act

IN SUPPORT OF H.R. 3013, THE ATTORNEY-CLIENT PRIVILEGE PROTECTION ACT -- (Extensions of Remarks - September 28, 2008)

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* Mr. SCOTT of Virginia. Mr. Speaker, I rise today in support of the ``H.R. 3013, the Attorney-Client Privilege Protection Act of 2008.'' This legislation would have reversed an ever changing DOJ policy on privileged material. I sponsored this bill because I believe DOJ's prior policy allowed prosecutors to overreach in forcing organizations and their employees to waive the protections of the attorney-client privilege and the work product doctrine.

* On August 28, 2008, Deputy United States Attorney General Mark R. Filip announced a new policy that adopted much of the substance of H.R. 3013. I applaud DOJ's effort, and see it as a clear and substantive improvement over the previous policy, in many respects. However, I believe legislation is still needed for at least three reasons.

* First, the new DOJ policy does not cover other federal agencies and many still have policies that undermine these important protections. A list of some of those agencies and their policies is attached to this statement.

* Second, agency policies on protections to the attorney-client privilege, including the Deputy Attorney General's new policy, do not have the effect of law. Defendants are advised in the new DOJ policy to complain to a prosecutor's supervisor when a prosecutor has violated DOJ policy. It is unrealistic, to say the least, to think that defendants are going to complain to the supervisor of a prosecutor who is determining whether to indict the organization because of the actions of one or more of its employees.

* Lastly and perhaps most importantly, public policy in this area should not be subject to the whims of every new administration. Deputy Attorney General Fillip's new policy is DOJ's fifth attempt in 10 years to settle this matter.

* Given the desire by some Members to give this new DOJ policy a chance to play out, it appears that legislation may not pass in the Congress this year. However, I call on all federal agencies to change their policies to come into line with H.R. 3013 as soon as possible. If legislation fails to pass in this Congress, I intend to reintroduce legislation in the next Congress. I also plan to hold a hearing in the next Congress to examine the issues of attorney-client privilege waiver and employee due process rights in federal investigations, to determine what if any real change has occurred in DOJ's actions under its new policy, and to determine whether other Federal agencies have appropriately revised their policies.

Department of Justice.

Securities and Exchange Commission (ac privilege, work product, employee legal rights).

Department of Housing and Urban Development (ac privilege, work product, employee legal rights).

Environmental Protection Agency (ac privilege and work product only).

General Services Administration/Civilian Agency Acquisition Council/Defense Acquisition Regulations Council (ac privilege and work product only; waiver demand is not explicit, but rather is implied as part of its proposed FAR rule dealing with ``Contractor Compliance Program and Integrity Reporting'').

Commodity Futures Trading Commission (employee legal rights only; it reversed its ac privilege and work product policies at our request).

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