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Harry Cassin
Publisher and Editor

Andy Spalding
Senior Editor

Jessica Tillipman
Senior Editor

Bill Steinman
Senior Editor

Richard L. Cassin
Editor at Large

Elizabeth K. Spahn
Editor Emeritus

Cody Worthington
Contributing Editor

Julie DiMauro
Contributing Editor

Thomas Fox
Contributing Editor

Marc Alain Bohn
Contributing Editor

Bill Waite
Contributing Editor

Shruti J. Shah
Contributing Editor

Russell A. Stamets
Contributing Editor

Richard Bistrong
Contributing Editor

Eric Carlson
Contributing Editor

The DOJ Contra Mundum

Six months ago, without fanfare, the Justice Department scrapped the McNulty Memo. It was replaced by new guidance for federal prosecutors about charging corporate organizations with crimes, including violations of the Foreign Corrupt Practices Act. The new guidance appears in the U.S. Attorney’s Manual (USAM) at chapter 9-28.000. Among its most striking features is new language about the attorney-client and attorney work-product privileges.

Under the 2006 McNulty Memo, and the Thompson Memo before it — both named for former Deputy Attorney Generals who signed them — the DOJ gave itself the green light to determine cooperation based in part on a company’s willingness to waive the privileges. Refusing to waive could result in a criminal indictment or stepped up charges. Agreeing to waive, however, obligated the company to disclose to prosecutors conversations and documents exchanged between the company’s employees and its lawyers, even if the employees thought those communications were confidential and protected from disclosure. At least that’s how everyone outside the Justice Department thought it worked.

But the new U.S. Attorney’s Manual says everyone was wrong. It says the DOJ never required corporations to give up their rights. It argues, with a straight face, that since the privilege belongs to the company, only the company can choose to give it up. So every waiver is therefore voluntary. Getting back to business, the DOJ pays tribute to the privileges, saying they’re old and sacrosanct; they serve the public interests by allowing full and frank discussions between attorneys and clients; and they’re essential in today’s world of complex rules and regulations imposed by governments at all levels. “For these reasons,” the DOJ concludes, “waiving the attorney-client and work product protections has never been a prerequisite under the Department’s prosecution guidelines for a corporation to be viewed as cooperative.”

Never a prerequisite? That’s not what 33 former U.S. Attorneys think. They sent a letter last June to Senator Patrick Leahy (D.,VT), chair of the Judiciary Committee. In the letter, they asked him to support a proposed bill intended to stop the Justice Department’s practice of pressuring companies to waive the attorney-client privilege. The bill hasn’t gone anywhere but the message from the 33 ex-federal prosecutors was loud and clear.

Under the McNulty Memo, they said, prosecutors could “demand that a business waive the privilege with regard to a host of communications with its counsel in exchange for more lenient treatment. . . . The widespread practice of requiring waiver has led to the erosion not only of the privilege itself, but also of the constitutional rights of the employees who are caught up, often tangentially, in business investigations.”

The former prosecutors told Senator Leahy that federal legislation is the only way to fix things. The McNulty Memo, they wrote, supposedly set up a review process whenever waivers were sought, but the oversight didn’t work. They cited a report by E. Norman Veasey, the former Chief Justice of Delaware. He found that prosecutors in the field still requested or demanded privilege waivers without the supervision required by the McNulty Memo. And, the ex-prosecutors warned, the McNulty Memo never covered other federal agencies, including the SEC, HUD, the FCC, and the EPA, among others, “all of which have issued copy-cat policies requiring waiver in exchange for cooperation.”

USAM 9-28.000 didn’t really change anything. It’s the latest version of the DOJ’s internal guidance, and that’s all. It clarifies that what the government really needs from companies is not a waiver of the privileges but disclosure of relevant facts about their misconduct. But will U.S. Attorneys in the field follow the new guidance? Who can say? The track record under the McNulty Memo isn’t encouraging. And the new guidance doesn’t apply to other federal agencies. No matter what the DOJ does or doesn’t do, other parts of the federal government can go on demanding waivers in exchange for cooperation. It’s up to them.

View the U.S. Attorney’s Manual 9-28.000 / Principles of Federal Prosecution of Business Organizations here and USAM 9-28.710 on attorney-client and work-product protections here.

Download the June 20, 2008 letter to Senator Leahy regarding the Attorney Client Privilege Protection Act here.

Download the McNulty Memo here (large pdf file) and the Thompson Memo here.

Listen to the podcast here.

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