Thursday, August 28, 2008
Deputy Attorney General Mark R. Filip announced today that the Department of Justice is revising its corporate charging guidelines for federal prosecutors. The revised guidelines state that credit for cooperation will not depend on the corporation’s waiver of attorney-client privilege or work product protection, but rather on the disclosure of relevant facts. Corporations that disclose relevant facts may receive due credit for cooperation, regardless of whether they waive attorney-client privilege or work product protection in the process. While prior guidance had allowed federal prosecutors to request the disclosure of non-factual attorney-client privileged communications and work product -- which the old guidelines designated “Category II” information -- the new guidance forbids it, with two exceptions.
The new Principles also instruct prosecutors not to consider a corporation’s advancement of attorneys’ fees to employees when evaluating cooperativeness. They also make clear that the mere participation in a joint defense agreement will not render a corporation ineligible for cooperation credit. In addition, the new guidance provides that prosecutors may not consider whether a corporation has sanctioned or retained culpable employees in evaluating whether to assign cooperation credit to the corporation.
Many speculate that the changes were made at this time to forestall Congressional action that might impose further limitations on federal prosecutors. It remains to be seen if these changes will be seen as a sufficient response to widespread criticism of past government practice.