Sunday, August 13, 2006

More on KPMG - Stein et al and Thompson Memo

Attorneys Stephen W. Grafman and William F. Boyer have a superb piece in the National Law Journal here discussing Judge Kaplan's recent decision in the KPMG related case.  They argue that the opinion does not go far enough and that dismissal of the government's case is in order.

Many have been critical of the Thompson Memo.  The question now is whether the government is hearing the message.  More importantly, in light of Judge Kaplan's decision, the ABA response, and so many criticisms levied against the government, will DOJ continue to use the memo.  That is, will DOJ continue to place future prosecutions in jeopardy by allowing this document to stand on the record.  As long as the Thompson Memo exists, there is the possibility of it being used, being interpreted to require, or being a convincing work that companies will feel compelled to follow in order to escape prosecution.

The results here could be devastating for prosecutors.  The company could escape prosecution, the individuals case may get destroyed by the memo's existence, and everyone may walk out free and clear.  As a taxpayer, I am not sure this benefits our pocketbooks.  Might it just be wiser for the government to issue a new memo, call this one quits, and move onto something a bit more acceptable to the legal community. Might it be the best way to assure that prosecutions do not fail.

(esp) 

http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/08/more_on_kpmg_st_1.html

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Comments

How is the right to right to -- basically -- not have the government interfere with the attorney-client relationship in a pre-indictment context a violation of substantive due process under U.S. criminal law? I say this given the fair amount of case law holding that plea bargaining -- and hence (the arguably coerced) waiver of the right to a jury trial -- *isn't* a similar violation under the doctrines of substantive due process and unconstitutional conditions.

Posted by: Min Choi | Aug 14, 2006 7:56:17 AM

One shocks the conscience and the other doesn't.

Posted by: Anonymous | Aug 15, 2006 7:44:27 AM

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