Tuesday, September 12, 2006

The Thompson Memo Hearings

The Thompson Memo has without doubt raised significant controversy in the legal community.  It contains provisions such as waiver of the attorney-client privilege, that factor into whether the company will be prosecuted or receive the benefit of a deferred prosecution agreement. Today was the day of airing this issue before a Senate Judiciary Committee (see here).  The day started with a statement from Senator Patrick Leahy, ranking member of the Senate Judiciary Committee. (see here)  He noted that:

"[t]he protection of communications between client and lawyer has been fundamental to our nation’s legal justice system since its inception. The right to counsel has long been recognized as essential to ensure fairness, justice and equality under the law for all Americans. This Administration has taken extraordinary steps to investigate and prosecute the press and to intimidate the press, critics, and attorneys while it has claimed unlimited privileges and secrecy for itself."

Some quotes from the testimony -

Hon. Paul McNulty (USA Eastern District of Virginia) here - "We see nothing wrong in asking a corporation to disclose to us the results of their internal investigation to assist us in investigating a corporation’s claim of innocence. Indeed, we believe it is good practice because it conserves public and private resources and, if the corporation’s claim is well-founded, it brings a quick conclusion to the government’s investigation."

Thomas J. Donohue, President & CEO -U.S. Chamber of Commerce here -

  • "A company that refuses to waive its privilege risks being labeled as uncooperative, which all but guarantees that it will not get a settlement.
  • The “uncooperative” label severely damages a company’s brand, shareholder value, their relationships with suppliers and customers, and their very ability to survive.
  • Being labeled uncooperative also drastically increases the likelihood that a company will be indicted and one need only look to the case of Arthur Andersen to see what happens to a business that is faced with that death blow."

Karen J. Mathis, ABA President 

Download attyclientprivissueabatestimonytosenjudcommkarenmathissept122006.pdf

"First, the Department of Justice's policy is inconsistent with the fundamental legal principle that all prospective defendants - including an organization's current and former employees, officers, directors and agents - are presumed to be innocent."

Other compelling testimony was also provided - see here



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