Waiver of Corporate Attorney-Client Privilege

After the corporate scandals at the turn of this century, DOJ worked hard to investigate and prosecute corporate wrongdoers.  The easiest path, of course, is the internal investigation memo prepared by the corporation's lawyers.  To get that, DOJ needed a waiver of corporate attorney-client and work product privilege.  So, the "Thompson Memo" encouraged prosecutors to reward corporations that waived the attorney-client privilege with a prosecutorial decision not to indict -- or to go easier in sentencing because of "cooperation" -- which means waiver of privilege.

The American Bar Association and Congress got all over DOJ for this originally well-intentioned policy.  Sen. Arlen Specter introduced legislation that would have countermanded this practice.  On December 12, 2006, DOJ's Deputy Attorney General Paul McNulty issued a new memo  which supersedes the Thompson Memo.  But is this a real policy change -- or just lipstick on a pig?

Here's a link to the McNulty Memo.  See what you think!

Link:  http://www.usdoj.gov/opa/pr/2006/December/06_odag_828.html

(ag) Jan. 19, 2007, in Corporate Governance.