By JODI SOKOLOWSKI
Buffalo Law Journal

The U.S. Senate reintroduced the Attorney-Client Privilege Protection Act before recessing June 26.

While the new bill, S. 3217, does not differ much in substance from a version passed by the House last year, it does reflect changes suggested by several senators, according to the Association of Corporate Counsel.

Some lawmakers wanted assurances that the bill would set clear standards and parameters for the Department of Justice, Securities and Exchange Commission, and other federal agencies whose policies and practices would be affected, the ACC stated.

The ACC announced its support for the revised bill, which would protect the attorney-client privilege and employee rights when the government is investigating or considering charges in response to allegations of wrongdoing or collapse of a corporation.

"While it was almost impossible to argue with the logic of the first bill, the language in the reintroduced bill is clearer and tighter," said Laura Stein, ACC board of directors chair and senior vice president/general counsel for The Clorox Co.

The new version would prohibit federal prosecutors and investigators from requesting or demanding the disclosure of any communication protected by the attorney-client privilege or of an attorney's work product.

The bill would also prohibit the government from basing any charge or adverse treatment on whether an organization pays its employees' legal fees or signs a joint-defense agreement.

The bill's original sponsor, Sen. Arlen Specter, Senate Judiciary Committee ranking member, said that the modified version clarifies language that the DOJ previously criticized as "ambiguous" and addresses his concerns about the department's corporate-prosecution guidelines.

"Those guidelines erode the attorney-client relationship by allowing prosecutors to request privileged information backed by the hammer of prosecution if the request is denied," Specter said on the floor June 26.

As a former prosecutor, he said, he is "well aware of the enormous power and tools a prosecutor has at his or her disposal" and that "the prosecutor has enough power without the coercive tools of the privilege waiver."

James Bennett, chair of the Bar Association of Erie County's Attorney/Client Relations Committee, said there has been a perception among certain governmental agencies that electronic communications inadvertently sent to unintended recipients are not protected.

"This (bill) is an attempt to clarify that and insert reasonableness into this concept to protect the attorney-client privilege so that attorneys can properly serve their clients," said Bennett, a partner at Watson Bennett Colligan Johnson & Schechter LLP.

BAEC past president Cheryl Smith Fisher said the local, state and national bar associations have been concerned about the government's use of those kinds of tactics.

"It's vital (for clients) to communicate honestly and openly with attorneys and not let information come out against them afterward. (A client) is entitled to get the best representation by an attorney, who can't turn on you," she said. "That's the crux of our legal system."