Thursday, March 15, 2007
Posted by Alan Childress
Colin Marks (St. Mary's--Law) has posted to SSRN--Evidence & Evidentiary Procedure his article, "Thompson/McNulty Memo Internal Investigations: Ethical Concerns of the Deputized Counsel." [I have dubbed it the McMemo or the McNulty Pocket Part, and posted previously there.] Marks's article is forthcoming in St. Mary's Law Journal (2007). Here is his abstract:
Outside counsel who conduct internal investigations for corporate clients have always faced ethical concerns, especially when interviewing employees. Generally, a carefully crafted blanket statement at the beginning of the interview explaining outside counsel's role was sufficient to address these concerns. However, recent charging policies adopted by the Department of Justice ("DOJ") have drastically changed the rules. These policies, articulated in what is now commonly referred to as the "Thompson Memo," after the author and then Deputy General Larry Thompson, allowed prosecutors to consider factors such as waivers of the attorney-client privilege and work-product protections and whether the company provides legal fees for employees when deciding whether to charge a corporation. These policies have led to what some have dubbed the deputation of outside counsel. Though the DOJ recently amended these policies, under the recently released McNulty Memo, concerns over privilege waivers and the deputation of outside counsel remain.
As a "deputy" of the DOJ, a new set of ethical concerns has emerged. This Essay explores some of the possible ethical concerns that outside counsel engaged in such investigations may face. The Essay begins by discussing the traditional scope and purpose of internal investigations including the application of the attorney-client privilege and work product protections. The Essay then tracks the development of the Thompson and McNulty Memos and how they have led to the deputation of outside corporate counsel. Finally, the Essay explores the ethical concerns the Thompson/McNulty Memos raise in the context of interviews by outside corporate counsel during internal investigations.