Tuesday, June 21, 2005

Private Lawyers for the Executive Branch

John Steele has an interesting post on the Legal Ethics Forum (here) about the Department of Justice's enlistment of private lawyers as the first line of investigation of corporate misconduct.  He writes about the new role for these lawyers: "But, quietly and almost unnoticed, some US lawyers have effectively adopted a fifth role: Officer of the Executive Branch.  The paradigm example arises when the DOJ uses the Thompson and Holder Memorandums to outsource their oversight and investigation functions to private law firms.  When a catastrophic corporate failure occurs, the DOJ advises the corporation that the DOJ might charge the company with a felony -- but, just maybe, the DOJ won't do that if the company hires top-notch white collar lawyers to do an immediate investigation, waives all privileges, and turns over the lawyers' notes and work product to the prosecutors."  I'm not sure about the unnoticed part, given the consistent complaints about the Thompson Memorandum (and its predecessor, the Holder Memorandum), but a change is certainly taking place in the investigation of corporate misconduct.  With the focus on the role of lawyers for the corporation, and the new internal whistleblowing rules imposed by the Sarbanes-Oxley Act, it is fair to ask whether we're witnessing a real revolution in the legal representation of corporations, and (perhaps more importantly) how prosecutors view the role of lawyers in representing their corporate clients or individual officers of organizations.  (ph)


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