December 13, 2006
Corporate Crime: Thompsom Memo Revised
The Justice Department, through a memo authored by Paul J. McNulty, has amended the "Thompson Memo," internal guidelines for when to indict a corporation (as opposed to its officers). The McNulty Memo indicates that corporate "cooperation", a factor on whether to indict the company, will depend less on 1) waivers of attorney client privilege and 2) on refusals to provide attorney fees for indicted executives. Both changes were sought by the bar, which, of course, has a substantial self-interest in the outcome. The bar will, of course, decry the guidelines as insufficient and late. Hidden in the debate over the Thompson Memo is the substantive issue: When should corporations be criminally liable for the acts of executives? I agree with those who think that vicarious liability in criminal actions is too broad, that some link of executive misbehavior to those in control of institutional policy or culture ought to be necessary.
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