Bills pending in both houses would bar waiver of attorney-client privilege in corporate investigations.
By Marcia Coyle|July 26, 2007 at 12:00 AM
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WASHINGTON � With bills now introduced in both the House and Senate, a wide-ranging coalition of business, bar and civil rights groups sees possible success by year’s end for a new law barring federal prosecutors from requiring waiver of attorney-client and work-product protections in corporate investigations. Bolstering its political campaign is a new survey by the Association of Corporate Counsel that found that more than 90 percent of 458 in-house counsel responding believe that the attorney-client privilege in the context of government investigations is either nonexistent or severely damaged. That is an increase from the organization’s 2005 survey, when 74 percent of respondents shared those sentiments. Skepticism by in-house counsel comes despite the recent policy changes in the use of privilege waivers announced by the U.S. Department of Justice in the so-called McNulty Memorandum, named after Deputy Attorney General Paul McNulty. “If you ask inside or outside counsel if they give any different advice now that we have the McNulty Memo, they would say no,” said Stephanie Martz, director of the white-collar crime project of the National Association of Criminal Defense Lawyers, which assisted in the survey. “The incentives [for waiver] are still there; the demerits [for nonwaiver] are still there,” Martz added. IN THE PIPE On July 12, Rep. Robert “Bobby” Scott, D-Va., chairman of the House Judiciary Committee’s subcommittee on crime, terrorism and homeland security, introduced H.R. 3013, the Attorney-Client Privilege Protection Act of 2007. The legislation mirrors a Senate bill introduced earlier this year by Sen. Arlen Specter, R-Pa., and Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. Key to the coalition’s optimism about final legislative action this year is the strong bipartisan and high-level support for the House legislation, drafted after hearings on the issue in March. Scott’s co-sponsors include House Judiciary Committee Chairman John Conyers, D-Mich., as well as the ranking Republican member of the full committee, Rep. Lamar Smith, R-Texas, and the ranking Republican subcommittee member, Rep. J. Randy Forbes, R-Va. After the March hearing, “The members did believe there is a problem with respect to the way DOJ carries out its investigations and felt even though the McNulty memo made changes, it didn’t go quite far enough,” said a committee staffer. Scott’s bill would prohibit all federal enforcement agencies from, among other things:
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