Thursday, October 25, 2007

Media Privilege Bill Advances

The grand jury investigations of I. Lewis Libby and Barry Bonds involved subpoenas to reporters for their communications with sources who had been promised confidentiality.  The federal courts unfailingly found that the demand for information trumped the media's confidentiality claims, with reporters being threatened with civil contempt and jail for refusing to respond to the subpoenas.  The House passed the "Free Flow of Information Act of 2007" (H.R. 2102 here) on October 16, and the Senate Judiciary Committee passed a similar bill on October 4 (S. 2035 here), to create a federal journalists privilege for communications with sources.  Senator Patrick Leahy, the Judiciary Committee chairman, has had the House bill placed on the Senate calendar to expedite consideration of the two legislative proposals.  According to a Judiciary Committee press release (here), the legislation would:

  • Establish a federal qualified reporters’ privilege to protect and encourage the free flow of information between journalists and sources;
  • Reconcile a reporter’s need to maintain confidentiality -- in order to ensure that sources will speak openly and freely -- with the public’s right to effective law enforcement and fair trials;
  • Balance the public interest in combating crime and protecting national security and the public interest in ensuring a free and vibrant press by providing that a federal court can only force a journalist to reveal confidential source information when the information is truly essential or crucial to a case or investigation;
  • Provide exceptions to the privilege for those situations where information sharing is critical.

Among the exceptions to the privilege in a criminal case is when the court finds that "the testimony or document sought is critical to the investigation or prosecution, or to the defense against the prosecution."  The statute does not explain what constitutes "critical" testimony or documents.  The use of that term rather than a more commonly used evidentiary term in criminal cases like "material" likely means that the courts will favor the privilege absent exceptional circumstances.

If the legislation passes, it will certainly make subpoenas to members of the media less common, if not almost extinct, because the threshold for obtaining the information will be so much greater that prosecutors may well not even want to pick the fight because it is an almost sure loser.  Whether that result is good or bad remains to be seen, but the legislation is certainly something for journalists to cheer. (ph)

October 25, 2007 in Privileges | Permalink | Comments (0) | TrackBack (0)

Saturday, September 29, 2007

Prosecutors Subpoena California Congressman and Five Aides in Abramoff-Related Investigation

A federal grand jury investigating Capitol Hill corruption subpoenaed California Representative John Doolittle and five of his aides for a number of documents created over the past eleven years.  The Congressman has been under investigation for over a year, including a search of his Virginia home, related to dealings with former superlobbyist Jack Abramoff, who is serving a six year sentence in federal prison and has been cooperating in the Department of Justice's continuing inquiry into corruption in Congress. Two of Doolittle's aide reportedly testified before the grand jury recently.  According to a story in The Hill (here), Representative Doolittle's lawyer asserts that the subpoenas cover "“virtually every record including legislative records," and the Congressman plans to fight them on the ground that the records are protected by the Speech or Debate Clause. 

Article I, Section 6 of the Constitution provides that "for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place."  The two leading Supreme Court cases on the scope of the Speech or Debate Clause are United States v. Brewster, 408 U.S. 501 (1972), and United States v. Helstoski, 442 U.S. 477 (1979). In Brewster, the Court stated, "[A] Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts." [Italics added]  In Helstoski, the Court explained, "Likewise, a promise to introduce a bill is not a legislative act. As to what restrictions the Clause places on the admission of evidence, our concern is not with the ‘specificity’ of the reference. Instead, our concern is whether there is mention of a legislative act. To effectuate the intent of the Clause, the Court has construed it to protect other ‘legislative acts’ such as utterances in committee hearings and reports. But it is clear from the language of the Clause that protection extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future date is not a legislative act."  The government will have to walk a fine line in seeking materials that do not come within the definition of "legislative act."

The D.C. Circuit's recent decision related to the search for records in the office of Louisiana Representative William Jefferson will likely be a favorable precedent for Representative Doolittle because the court held that the Executive branch cannot view legislative materials protected by the Speech or Debate Clause.  The government is seeking rehearing en banc to clarify the scope of the privilege afforded members of Congress by the Constitution (see earlier post here).  The number of investigations of Capitol Hill corruption, and the link to official acts of Congress, likely means this issue will arise with some regularity in the near future.  If the D.C. Circuit does not grant review by the full court, look for the Department of Justice to seek Supreme Court review of the issue.  (ph)

September 29, 2007 in Corruption, Investigations, Privileges | Permalink | Comments (0) | TrackBack (0)

Monday, September 24, 2007

Now the Government Claims Conflict of Interest in KPMG Case

Both the New York Times here and the here are reporting that prosecutors in the KPMG related case are trying to conflict-out two defense counsel.  The prosecutors are claiming that the two defense counsel may have provided legal advice to David Amir Makov, who is now cooperating with the government.  Interestingly, the states that the lawyers for Makov do not see the problem alleged by the government.  If the witness has his own lawyer, and that lawyer doesn't see the issue, why is the government claiming one exists?

The term "secret defense agreement" as used in the article may make what occurred here sound somewhat nefarious.  In reality, joint defense agreements are quite common today.  Multiple defendants will enter into these agreements for the purpose of exchanging information yet maintaining the attorney-client privilege. They also allow the multiple defendants to cut costs by perhaps hiring one accountant, investigator, or other expert. With the costs placed upon defendants facing white collar charges, this is understandable. These agreements, however, can become a problem when one defendant who is a party to the agreement decides to testify for the government.


September 24, 2007 in Defense Counsel, Privileges | Permalink | Comments (0) | TrackBack (0)

Thursday, September 20, 2007

What's Next for the Corporate Attorney-Client Privilege Bill

Senator Arlen Specter's bill, the Attorney Client Privilege Protection Act of 2007 (S.186 here), was the subject of a Senate Judiciary Committee hearing on September 18.  The five witnesses (statements available here) included two who strongly support the bill, former Attorney General Dick Thornburgh and Andrew Weissman, who headed the Enron Task Force before entering private practice.  Two academics, Professors Dan Richman of Columbia and Michael Seigel of Florida, oppose the bill, as did Karen Immergut, the U.S. Attorney for the District of Oregon who is the chair of the White Collar Subcommittee for the Attorney General's Advisory Committee.  Specter has been pushing legislation to limit demands on corporations to waive the attorney-client privilege since 2006, but it's not clear whether the bill will clear the Senate Judiciary Committee any time soon.  Specter is the only sponsor of the legislation, and Judiciary Committee Chairman Patrick Leahy has not yet announced his position on the bill.  According to an article in The Deal (available on here), Specter wants a quick vote on the legislation, without waiting to raise the issue in the hearings on the nomination of Michael Mukasey to be the next Attorney General.  Whether Leahy and others will go along with that, or postpone any action on the bill until they can get Mukasey's views remains to be seen.  (ph)

September 20, 2007 in Privileges | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 11, 2007

Attorney-Client Privilege Hearing Set

The Senate Committee on the Judiciary has issued a notice of a hearing on September 18, 2007 on "Examining Approaches to Corporate Fraud Prosecutions and the Attorney-Client Privilege Under the McNulty Memorandum."


September 11, 2007 in Privileges | Permalink | Comments (0) | TrackBack (0)

Thursday, August 30, 2007

Work Product Privilege Upheld in Textron Case

The United States District Court for Rhode Island issued a Memorandum Order finding that "requested documents [were] protected by the work product privilege."  The court denied the government's petition for enforcement of an IRS summons served on Textron Inc. and its subsidiaries "in connection with the IRS's examination of Textron's tax liability for tax years 1998-2001.  Textron had "refused to provide the requested documents on the grounds that (1) the summons was not issued for a legitimate purpose and (2) the tax accrual workpapers are privileged."  The court rejected Textron's arguments of attorney-client privilege and tax practitioner privilege. Judge Torres, however, did accept the work product privilege as a legitimate argument since the IRS "failed to carry the burden of demonstrating a 'substantial need' for ordinary work product, let alone the heightened burden applicable to Textron's tax accrual workpapers, which constitute opinion work product."

(esp) (w/ a hat tip to Stephanie Martz)

August 30, 2007 in Privileges | Permalink | Comments (0) | TrackBack (0)

Sunday, July 15, 2007

Attorney-Client Privilege Bill Picking Up Support

Initially it was Senator Arlen Specter's bill (S 186) in the Senate that stood alone, asking to provide additional protection to the attorney-client privilege.  But as of last week, the House also has a similar bill circulating.  There is bi-partisan support on the bill authorship, with the new bill being introduced by Representatives Bobby Scott (D-VA) and Randy Forbes (R-VA).  The house version matches the proposed legislation in the Senate.  In commenting on this new bill, ABA President Karen Mathis stated,

In so doing, it strikes the proper balance between the legitimate needs of prosecutors and regulators and the constitutional and fundamental legal rights of individuals and organizations.  The American Bar Association strongly urges Congress to approve this critical legislation as soon as possible.

Many support the house bill (see NACDL).


July 15, 2007 in Privileges | Permalink | Comments (0) | TrackBack (0)

Sunday, July 8, 2007

Beyond Executive Privilege?

The White House has been fighting the release of information related to the DOJ "firings" with claims of executive privilege. Peter Baker has a wonderful article in the Washington Post that outlines the issue of executive privilege.  And as noted in this piece, the executive may be successful on some of these issues. Yahoo News reports here that the Senate Judiciary Committee subpoenaed Sara Taylor, a former White House political director, and the question will be whether the White House will object to her providing this testimony on July 11th.  But the White House objection may present a problem in this scenario- as the emails in question were on an e-mail account at the Republican National Committee.  A court may be hard pressed to find that the executive privilege extends to the political arena.


July 8, 2007 in Privileges | Permalink | Comments (0) | TrackBack (0)

Saturday, May 19, 2007

Analyzing the McNulty Memo

A recent article by Joshua Berman and Machalagh Proffit-Higgins, from the D.C. office of Sonnenschein Nath & Rosenthal, analyzes the history and development of the Department of Justice's policy memoranda on prosecuting corporations that culminated recently with the issuance of the third in the series, the McNulty Memorandum.  The article, "Prosecuting Corporations: The KPMG Case and the Rise and Fall of the Justice Department's 10-Year War on Corporate Fraud" (available below), looks at the earlier versions of the corporate charging policy, the Holder and Thompson Memos, and the decision by U.S. District Judge Lewis Kaplan in the KPMG tax shelter prosecutions that found the application of the Thompson Memo unconstitutional by denying the defendants their rights to due process and counsel.  The article, published in the Criminal Law Brief by the Washington College of Law at American University, considers how the district court's opinion in KPMG has shaped the Department of Justice's most recent effort to blunt criticism of its approach to corporate crime investigations that makes waiver of the attorney-client privilege and work product protection a featured part of the case.  The article notes that "[i]n the end, the eventual impact of the McNulty Memorandum is likely to depend more on DOJ's incorporation of the Memorandum into their efforts to combat corporate fraud than the actual words on the page."  (ph)

Download prosecuting_corporations_article.pdf

May 19, 2007 in Privileges, Prosecutions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, April 5, 2007

Goodling's Attorney Fires Back at the House Judiciary Committee

Monica Goodling, the senior counsel to Attorney General Gonzales who has refused to testify about the U.S. Attorney firings by asserting the Fifth Amendment, has rejected a demand from the House Judiciary Committee that she explain why she is asserting the self-incrimination privilege.  A letter from her lawyer, Akin Gump's John Dowd (available below), states that, while Goodling is innocent of any wrongdoing, a statement by Deputy Attorney General Paul McNulty that he did not receive complete information that led to him making misstatements to Congress has created a sufficient basis for Goodling to assert the Fifth Amendment, precluding any discussion of the exact basis for her position. Dowd's letter ratchets things up a notch by citing to D.C. Legal Ethics Opinion No. 31 (1977) that states it would violate the spirit of the profession's rules to require a witness to appear before a Congressional committee just to assert the Fifth Amendment when counsel notifies the committee in advance of the witness' decision to refuse to testify. 

The House Judiciary Committee's offer to have Goodling meet for a private interview provides her with no protection because the Fifth Amendment is a "use it or lose it" right, meaning that if she were to disclose information to a government official then she could not assert the privilege down the road.  Absent a grant of immunity, which is unlikely, Goodling has two options: speak or assert the Fifth Amendment.  While Congress may not like the result, that's how the protection works.  Dowd's letter may not prevent the Committee from pursuing the unseemly spectacle of demanding Goodling appear to assert the Fifth Amendment in person, as has been done in other situations (e.g. the Hewlett-Packard pretexting hearing in September 2006), to provide the photo opportunity and a forum for Representatives to bemoan the person's assertion of a constitutional right.  (ph)

Download goodling_letter_april_4_2007.pdf

April 5, 2007 in Privileges, Prosecutors | Permalink | Comments (1) | TrackBack (0)

Monday, March 26, 2007

Taking the Fifth - U.S. Attorney Firings

Monica Goodling, senior counselor to AG Gonzalez, plans to take the 5th Amendment when called to testify by the legislature. (see Wall Street Jrl here, N.Y. Times here).  Her attorney's letter here explains the reasons for this course of conduct.

Now if this had taken place in a corporation that was under investigation, legal counsel for the corporation would be calling the parties in and asking the employees to answer questions. Either internal or external counsel would be investigating to determine if there was wrongdoing involved in the activities.  In all likelihood the individual would have no attorney-client privilege in a world where deferred prosecution agreements allow the corporation to act as mini-prosecutors and turn over evidence of the individuals to the government.  And if the individual refused to speak with counsel - the result would be - you're fired.  Will that happen here? And perhaps, more importantly, should that happen here?

What it is important to remember here is that we are all entitled to exercise constitutional rights, even those who work at the Department of Justice.


March 26, 2007 in Investigations, Privileges, Prosecutors | Permalink | Comments (2) | TrackBack (0)

Saturday, March 17, 2007

Some Thoughts on the McNulty Memo

David Z. Seide has a piece in the Corporate Goverance Advisor (Aspen) that is shared here by himself and his publisher. The title of the article: "Is the Department of Justice's McNulty Memorandum A Cure-All?"

Download seide_article_is_the_dojs_mcnulty_memo_a_cureall.pdf


March 17, 2007 in Privileges | Permalink | Comments (0) | TrackBack (0)

Sunday, March 11, 2007

KPMG Guest Posting - Part IV

Professor J. Kelly Strader (Southwestern) - Guest Blogging - KPMG PART IV -

What lessons can we draw so far from the KPMG case? First, by any measure this is an enormously complex case. In pre-trial discovery, the government has produced over 11 million pages of documents, the transcripts of 335 depositions, and 195 income tax returns. The government has named 68 trial witnesses and identified over five thousand trial exhibits. The trial is estimated to last from four to eight months.

Second, this case has produced an extraordinary amount of pre-trial litigation, even for a complex financial fraud case. As of last summer, well over 1,000 pages of pretrial briefs had been filed, and it’s probably over 2,000 pages by now. (Most recently, the defendants filed a motion to vacate an order granting the government’s request to dismiss the criminal case against KPMG. The court recently denied the motion (see here).

What does all the pre-trial litigation and maneuvering mean? At one point last month, as I watched the mounds of KPMG-related briefs pile up on my desk, I had a nightmare flashback to the time when I was a junior litigation associate at a large New York law firm. One day, I was told that I would be working on the mergers and acquisitions litigation team (otherwise known to junior associates as the hell realm). Such litigation produces furious motion practice that is often more tactical than substantive and that seems to have no end. (The silver lining is that I ended up in a career of white collar criminal defense.)

I wonder whether the issues surrounding the Thompson and McNulty Memorandums is transforming white collar litigation into similarly overly-complicated litigation. So long as the government continues to seek to obtain attorney-client privilege waivers, to exert pressure on entities to decline to pay individuals’ attorneys’ fees, and to deem assertion of the Fifth to be non-cooperation, we are likely to see more KPMGs. This does not bode well either for the efficient use of our resources in fighting white collar crime, or for the functionality and fairness of the criminal justice system.


March 11, 2007 in Privileges | Permalink | Comments (1) | TrackBack (0)

Saturday, January 6, 2007

Lawyering Up at the White House, Part Deux

An earlier post (here) discussed recent hires into the White House counsel's office of lawyers with experience in white collar crime investigations.  Now President Bush's chief legal counsel, erstwhile Supreme Court nominee Harriet Miers, has stepped down amid claims that the White House needs a lawyer with greater experience in dealing with investigations, something outside Miers' experience.  A Washington Post story (here), citing the usual anonymous sources (this is Washington DC, where leaking is a contact sport), states that the Democrats takeover of Congress will result in a slew of investigations of the Administration, ranging from the war in Iraq to favoritism in the award of contracts and the like.  With the power to subpoena comes the inevitable conflict over issues like Executive privilege and the attorney-client privilege. 

The article notes that Senator Leahy, the new chair of the Senate Judiciary Committee, was denied documents related to advice given the President on acceptable interrogation methods related to the CIA's program of secret overseas prisons, with the Department of Justice asserting the memos were confidential legal advice.  It will be interesting to see if Congress is as solicitous of the Executive's privilege claims as it is for the attorney-client privilege in the context of government investigations of possible corporate crime. (ph)

January 6, 2007 in Defense Counsel, Investigations, Privileges | Permalink | Comments (2) | TrackBack (0)

Tuesday, January 2, 2007

Kaye Scholer Adds Another Voice on the McNulty Memo

Yet another voice critiques the McNulty Memo.  This time it comes from Kaye Scholer White Collar Litigation and Internal Investigations Group Update.  Their take on the memo - Download white_collar_update_jan_2007.pdf like so many others, finds flaws in the latest Justice Department attempt to keep Congress from intervening. Unlike some others, they are not as optimistic on whether Congress will intervene. Other comments can be found here, here, here, and here.  One thing is certain, and that is that Larry Thompson owes a thank you to McNulty for taking his name off of the revised Holder Memo. 


January 2, 2007 in Legal Ethics, Privileges, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Monday, December 25, 2006

More on the McNulty Memo

So far the McNulty Memo has not fared well in the public comments. Many still criticize the DOJ for failing to recognize the importance of the attorney-client privilege.  Others contend that the memo does not go far enough in that it still allows prosecutors to procure waivers, albeit now with supervisory consent. Finally some object to the designations used by DOJ in deciding when they will allow the attorney client privilege to be waived. Others are upset that the Memo is an exercise of executive power without judicial oversight.  Clearly the Memo fails to address the concerns raised by the ABA in Resolution 302B, a resolution that passed the ABA unanimously.

The entries on the blog related to this Memo can be found here, here, here, here, and here.


December 25, 2006 in Defense Counsel, Privileges, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 19, 2006

Another Voice Objecting to the McNulty Memo

The McNulty memo, discussed here, here, here, and here, is clearly controversial.  Another voice can be added to those proclaiming that the memo is deficient as not going far enough.  This time it is William Sullivan of Winston & Strawn.  Last March, Sullivan, a former prosecutor, testified before the House.  He appeared along with Tom Donahue, former Attorney General Thornburgh, and former Associate Attorney General Robert McCallum. William Sullivan now provides a detailed release Download Untitled.pdf that states is part:

"Ultimately, the Memorandum's piecemeal revisions may in the short term appease some critics and forestall imminent judicial and congressional action, but they do not demonstrate an earnest re-evaluation of Department policies regarding corporate criminal enforcement, and fail to provide meaningful procedural change."


December 19, 2006 in Defense Counsel, Legal Ethics, Privileges | Permalink | Comments (4) | TrackBack (0)

Saturday, December 16, 2006

Comments on the McNulty Memo

What have others been saying about the McNulty Memo -

ABA Jrl E- Report here

Alan Childress, Legal Profession Blog here

Business Week Online here

Carrie Johnson, Washington Post here

Dale Oesterle, Business Law blog here

Doug Berman's Sentencing Blog here

Jason McClure, Legal Times here

Linnley Browning, New York Times here

Peter Lattmen, Wall Street Journal Blog here and here

Porter Wright Morris & Arthur here

Wachtell, Lipton, Rosen & Katz here  (per the Wall Street Jrl)(John F. Savarese & David B. Anders)

WilmerHale here


December 16, 2006 in Privileges | Permalink | Comments (1) | TrackBack (0)

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.


December 13, 2006 in Defense Counsel, Legal Ethics, Privileges, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 12, 2006

Protecting the Privilege and the Issue of Remedy

The Department of Justice's latest guidance on prosecuting corporations, the newly-christened McNulty Memo, tries to assuage some of the concerns of corporations and various interest groups about the frequency with which federal prosecutors can request waiver's of the privilege.  This latest iteration of the Department's policy is now even more complex than its predecessors, the Thompson and Holder Memos, by creating categories of privileged material and work product.  On this blog, we will discuss various issues related to this new approach, but it remains an open question whether Congress will intervene and set the policy through the legislation that Senator Arlen Specter will introduce in the new Congress in January.  As discussed in an earlier post (here), this legislation would prevent federal prosecutors from seeking a privilege waiver in any circumstances, along with other prohibitions.  These are the two approaches, one legislative and one an internal guideline, that raise a number of interesting questions we plan to discuss here.  The first issue we will talk about is whether there should be some enforcement mechanism along with the restrictions on requesting waivers,and the related question of the proper remedy for a violation.

Peter Henning: One significant weakness with the McNulty Memo appears in its name -- it is only an internal policy statement with no means to enforce its provisions except what the Department chooses to provide.  While the Office of Professional Responsibility could investigate a complaint, the McNulty Memo has a hortatory value but not much else if there is a violation of its restrictions on privilege requests.  The U.S. Attorney's Manual is quite explicit in its first provision that it "provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby placed on otherwise lawful litigative prerogatives of the Department of Justice."  USAM 1-1.100.  The McNulty Memo will take the place of the Thompson Memo in the Manual, and be subject to the same limitation on its enforceability, or even usefulness outside of an internal Department investigation.

The "Attorney-Client Privilege Protection Act of 2006" that Senator Specter will introduce (I'm hopeful with "2007" at the end) in the next Congress similarly does not contain any enforcement mechanism or reference to what remedy might be available (or to whom) in case of a violation.  One can argue that not including a remedial provision is a benefit because it creates maximum judicial discretion, but that can also lead to substantial inconsistency.  More importantly, a crucial issue involved in the proposed legislation is identifying the goal Congress would hope to achieve if it enacts the bill.  If the purpose is to eliminate what Congress views as prosecutorial misconduct, then providing a remedy against the prosecutor without directly interfering in the underlying investigation or prosecution would be a good approach.  The focus of Senator Specter's bill is on the request for a waiver and the decision whether to institute charges, and not as much with providing that information.  The bill acknowledges that a corporation can voluntarily waive its privilege and work product protection, so I think the focus is on the prosecutor and not simply protecting information. 

I would be surprised if a federal prosecutor made a request that arguably violated the bill and was not immediately the subject of a protest to the U.S. Attorney, Main Justice, and the courts about the legal violation.  I think it is unlikely that a company would provide privileged information and protected work product and then later come to the realization that the request violated the Attorney-Client Privilege Protection Act.  The question, then, is if the primary concern is prosecutorial misconduct, can a remedial provision be attached to the bill that would fulfill that purpose? 

One area that has some similarity to this issue is Federal Rule of Criminal Procedure 6(e)'s provision for pursuing violations of the grand jury secrecy requirement.  Rule 6(e)(7) provides: "A knowing violation of Rule 6, or of guidelines jointly issued by the Attorney General and the Director of National Intelligence pursuant to Rule 6, may be punished as a contempt of court."  This provision concerns prosecutorial misconduct, and permits a direct punishment of the government attorney for a violation.  Moreover, the provision requires proof of knowledge, and provides that a violation "may be punished."  These limitations give the courts flexibility to find that a de minimis or technical violation does not merit contempt, while a serious transgression could even be punished with a fine or jail sentence.  This strikes me as a workable provision under Senator Specter's legislation, and could be added quite easily as a single sentence amendment.

One possible objection is that such a provision only addresses the prosecutor's conduct but not the effect on the investigation.  To address that issue, a provision similar to Federal Rule of Criminal Procedure 41(g) could be added.  That Rule provides, "A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return."  Similarly, language could be added so that a company aggrieved by a violation of the act could move for the return of documents and a restoration of the privilege and work product protection for any information it was compelled to turn over in violation of the law.  If the case ever came to trial, a court could ensure that the government did not use privileged information, something every trial just is empowered to do already.   

If the goal of the bill is to give corporations, and perhaps their employees, a means to block an investigation or have an indictment dismissed, then leaving judges the widest discretion may be the way to achieve that purpose.  The discussion about the legislation has been focused on the need to protect the privilege, and I think there are some fairly simple procedural mechanisms to punish prosecutorial misconduct and restore privileged communications and work product to their prior state that can give the courts real guidance on how to proceed in cases that arise five and ten years down the line.  Enacting a law prohibiting conduct without any direction on how it should be applied creates significant uncertainty that may result in inconsistent results.  If the legislation does create (or restore) an important right, then it should have a remedy. (ph)


Ellen S. Podgor -  Although I agree with many of the points made by my co-blogger, there are several aspects that we do part ways. So stay tuned to a forthcoming entry that will discuss another approach. It will specifically look at why it is important to provide judges with flexibility in fixing a remedy for a violation, why existing statutes of a similar nature mirror this approach, and why the focus of Senator Specter's bill is on the information, more specifically on protecting a privilege that is at the bedrock of our adversarial system. (esp)

December 12, 2006 in Legal Ethics, Privileges, Prosecutors | Permalink | Comments (0) | TrackBack (1)