Wednesday, December 13, 2006

Protecting the Privilege and the Issue of Remedy-Part II

Focusing on Four Things -

1. In analyzing the McNulty Memo, there are several interesting points to note within the initial parts of the document.  In going from the Holder Memo to the Thompson Memo, Larry Thompson outlined in the initial paragraphs the main reason for revisions - "increased emphasis on and scrutiny of the authenticity of a corporation's cooperation."  He also noted that "[f]urther experience with these principles may lead to additional adjustments."  These lines are omitted in the McNulty Memo.  In its place one finds some interesting language that demonstrates the motivation of DOJ in presenting this revised memo.  For example, in Part I of the Memo there are several references to "perception."  Clearly the DOJ has been bombarded with criticisms for its actions regarding attorney-client privilege waivers.  This recognition of how their actions "impact[] public perception" is noteworthy.  This very long new Memo by DOJ, with clear emphasis on combating corporate crime, is clearly an attempt to keep as much as possible of existing rules in place, but also change the perception of the DOJ from being called the ones who are destroying the attorney-client privilege to the ones who are fighting corporate crime.

2. The problem with the DOJ categorization of materials, is that we see an executive agency legislating.  They are creating rules that they can or cannot follow in their deciding when to violate the longstanding attorney-client privilege.  The most important aspect here is that they are not only the ones who are deciding what the rules will be, but also how they will be interpreted, and what happens if they are not followed. 

3. In Part II of the Memo it states - "an indictment often provides a unique opportunity for deterrence on a massive scale.  In addition, a corporate indictment may result in specific deterrence by changing the culture of the indicted corporation and the behavior of its employees." 

Since when is deterrence supposed to be forthcoming from an indictment?  Shouldn't we have a trial first? And more importantly, shouldn't we first have a conviction? 

4.  So why does the Specter legislation provide a better alternative?  The main reason is that it keeps within the executive branch - the executive functions.  It allows the judiciary to provide the proper oversight and thus promotes a system with proper checks and balances.

5.  Finally, back to the discussion with my co-blogger.  The Specter bill does not explicitly have language for a remedy when there is a violation.  This is no different from the McDade Amendment. A remedy was unnecessary there, as none is necessary here. Judges need to have discretion to provide for an appropriate remedy depending upon the circumstances.  Judges, through caselaw, will interpret the statute to let prosecutors know what is proper and what is not.  Who knows, maybe they will have a Leon type of an exception that allows the conduct to stand when the prosecutor acts in good faith.

(esp)

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