Tuesday, December 12, 2006

The McNulty Memo - Attorney-Client Privilege Waivers & Attorney Fees

It looks like DOJ has decided to try and save itself from legislation (here) concerning the attorney-client privilege waivers, by issuing a revision to the Thompson Memo.  DOJ issued a press release that tells of Paul McNulty's talk to Lawyers for Civil Justice in New York.  The new McNulty Memo and an Executive Summary are below.  The press release states in part:

"The new guidance requires that prosecutors must first establish a legitimate need for privileged information, and that they must then seek approval before they can request it. When federal prosecutors seek privileged attorney-client communications or legal advice from a company, the U.S. Attorney must obtain written approval from the Deputy Attorney General. When prosecutors seek privileged factual information from a company, such as facts uncovered in a company’s internal investigation of corporate misconduct, prosecutors must seek the approval of their U.S. Attorney. The U.S. Attorney must then consult with the Assistant Attorney General of the Criminal Division before approving these requests.

"The guidance cautions prosecutors that attorney-client communications should be sought only in rare circumstances. If a corporation chooses not to provide attorney-client communications after the government makes the request, prosecutors are directed not to consider that declination against the corporation in their charging decisions. Prosecutors are told to request factual information first and make sure they can establish a legitimate need to go further before requesting a waiver of privilege to obtain attorney-client communication or legal advice.

"The new memorandum also instructs prosecutors that they cannot consider a corporation’s advancement of attorneys’ fees to employees when making a charging decision. A rare exception is created for those extraordinary instances where the advancement of fees, combined with other significant facts, shows that it was intended to impede the government’s investigation. In those limited circumstances, fee advancement may be considered only if it is authorized by the Deputy Attorney General."

It is certainly wonderful to see the DOJ realizing the importance of the right to counsel, and how asking for a waiver of attorney fees can be problematic to making certain that the accused has appropriate legal counsel. In light of the Stein case, this is certainly a step in the correct direction.

But with regard to the attorney-client privilege, the new McNulty Memo does not go far enough.  For one, it is commonly known that DOJ guidelines are nothing more than internal guidelines that are unenforceable at law.  So if an AUSA fails to follow this guideline, and forgets to seek approval before requesting a waiver, there is nothing that the accused can do in response.  This is exactly why, Specter's legislation is needed.  As long as the possibility exists that DOJ will allow someone to ask for a waiver of the attorney-client privilege, the privilege is in jeopardy. 

What is not mentioned here is that DOJ always has the right to secure a waiver with a court through the crime-fraud exception.  It is sad that this new Memo tries to bypass judicial review by having the DOJ do internally what is clearly against the long standing privilege.

On the bright side - Larry Thompson is probably happy to see a new name on this memo.

(esp)

Download mcnulty_memo.pdf

Download mcnulty_memo_executive_summary.pdf

http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/12/the_mcnulty_mem.html

Legal Ethics, Privileges | Permalink

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