The National Law Journal, Feb. 20, 2009
By Marcia Coyle
Despite reassuring statements by Attorney General Eric Holder on the issue of attorney-client privilege waivers in corporate investigations, a key senator is moving forward with legislation to put protection for the privilege and the work-product doctrine into law and throughout government.
Sen. Arlen Specter, R-Pa., the ranking minority member of the Senate Judiciary Committee, has reintroduced, with bipartisan support, the Attorney-Client Protection Act of 2009, S. 445.
"To their credit, the Filip guidelines [named after Deputy Attorney General Mark Filip who issued them last summer] preclude prosecutors from asking for privilege waivers in nearly all circumstances," Specter recently said on the Senate floor. "However, as evidenced by the numerous versions of the Justice Department's corporate prosecution guidelines over the past decade, the Filip reforms cannot be trusted to remain static.
"Moreover, unlike federal law -- which requires the assent of both houses and the President's signature or a super-majority in Congress -- the Filip guidelines are subject to unilateral executive branch modification," he added. "Therefore, to avoid a recurrence of prosecutorial abuses and attorney-client privilege waiver demands, legislation is necessary."
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