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WASHINGTON — The U.S. House on Tuesday approved and sent to the Senate a bill prohibiting federal prosecutors from demanding waiver of attorney-client privilege or work-product protections as evidence of cooperation in corporate investigations. The bill, H.R. 3013, passed on a voice vote. The measure, sponsored by Representative Robert Scott, D-Va., would apply to any federal investigation or criminal or civil enforcement matter. Under the measure, federal agents or attorneys could not use in making a charging decision or in determining cooperation the following: • any valid assertion of the attorney-client privilege or privilege for attorney work product; • the provision of counsel to, or contribution to the legal defense fees or expenses of, an employee of the organization; • entry into a joint-defense, information-sharing, or common-interest agreement with an employee of the organization if the organization determines it has a common interest in defending against the investigation or enforcement matter; • the sharing of relevant information with an employee, • a failure to terminate an employee’s employment, or otherwise sanction an employee, because of the employee’s decision to exercise his or her constitutional rights or other legal protections in response to a government request. The legislation has been the goal of a broad coalition of business, legal and civil rights organizations.They contend the Department of Justice, the Securities and Exchange Commission, and other enforcement agencies routinely require or expect waivers of the attorney-client privilege and work product protection, which, they say, creates an untenable situation for businesses, their employees, and attorneys. “By passing this bill, the U.S. House of Representatives sent a clear message to the Department of Justice and other enforcement agencies that their abusive prosecutorial tactics must come to an end,” said Thomas Donohue, president of the U.S. Chamber of Commerce, a member of the Coalition to Preserve the Attorney-Client Privilege. Another coalition member, the Association of Corporate Counsel also praised the House action. “There is nothing in this bill that prevents the DOJ from prosecuting whomever it wants and using all the tools in its arsenal to conduct an investigation, get to the truth and prosecute the guilty,” said ACC senior vice president and general counsel Susan Hackett. “Instead, this bill demands that the DOJ play fair in doing so.” Caroline Fredrickson, director of the ACLU Washington Legislative Office, agreed, adding, “This is a commonsense approach to restoring one of the fundamental legal protections guaranteed under the Constitution to those under investigation. This is a rubber meets the road matter of justice. Americans under investigation should not be intimidated into waiving their rights, as has been the practice during certain Justice Department investigations.” The Senate has similar legislation pending in committee.

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