Attorney Client Privilege Protection Act of 2008 (ACPPA)
The attorney client relationship is a time-honored and sacred relationship. It is black letter law that the attorney-client privilege prevents an attorney from disclosing to a third party any confidential communications made during the existence of an attorney-client relationship. This privilege fosters truthful and honest dialogue between the lawyer and the client. With certain very limited exceptions, the privilege is impenetrable unless the client voluntarily waives it. Additionally, an attorney may assert the work product privilege to protect mental impressions, notes and thoughts relating to litigation.
The Department of Justice has, first through the Thompson Memo and then the McNulty Memo, instituted corporate prosecution guidelines which have the effect of encouraging companies and organizations to waive attorney-client and work product privileges during investigations. In response, Senator Arlen Specter sponsored the Attorney Client Privilege Protection Act of 2008 (ACPPA). The purpose of the Act is to protect such confidential information and discourage unnecessary waivers of the privilege.
The new law proposed by Sen. Specter would prohibit law enforcement from: (i) requiring an organization or current employee to waive attorney-client or work product privilege; (ii) offering a reward or rewarding an organization or employee for waiving the attorney-client or work product privilege; and (iii) threatening to penalize an organization or an employee for declining to waive attorney-client privilege or work product privilege.
The government cannot use the following conduct it its decision to criminally or civilly charge a party or to determine if an employee is cooperating with the authorities:
• the organization or employee has asserted attorney-client or work product privilege;
• the organization provides legal counsel or payment of legal fees for an employee;
• the organization or employee present a joint defense;
• the organization or an employee share information;
• the organization fails to terminate an employee who asserts constitutional rights or legal protections.
The statute does not apply to information that a person of “ordinary sense and understanding” would not know is subject to attorney-client or work product privilege or information that is not entitled to attorney-client or work product. The statute does not prevent voluntary disclosures by an employee or organization who “voluntarily” or gives an “unsolicited offer” to waive the protections of attorney client or work product privilege.
We will report further on the progress of this legislation through Congress.
(With appreciation to Rochelle D. Laws, Esq., for contributing this entry)
