October 24, 2005
New Memo on Attorney-Client Privilege
Robert D. McCallum, Jr., Acting Deputy AG, issued a "Memorandum" to "Heads of Department Components and United States Attorneys" concerning the statement in the Thompson Memo that speaks to the waiver of the attorney-client privilege. The Memorandum notes that "[o]ne of the nine factors [listed in the Thompson Memo] is 'the corporation's timely and voluntary disclosure or wrongdoing and its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of corporate attorney-client and work product protection.'" McCallum's memo does not find this practice improper, nor does it reject a prosecutor's asking for the waiver of the attorney-client privilege when dealing with a corporation or business. This new memo merely directs that "consistent with" the practice used by some US Attorneys' Offices, each individual office should "establish a written waiver review process for [their] district or component."
Ironically, in contrast to the position taken by DOJ with respect to sentencing matters, this memo states that "[s]uch waiver review processes may vary from district to district (or component to component), so that each United States Attorney or component head retains the prosecutorial discretion necessary, consistent with their circumstances, to seek timely, complete, and accurate information from business organizations."
Is this supposed to placate those who have been criticizing the government's requests for a waiver of attorney-client privilege in dealing with corporations and businesses?
The Memo is here - Download AttorneyClientWaiverMemo.pdf
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