The Privilege of Further News About Revised DOJ Policy: It's Only The McNulty Pocket Part? It's Mainly A Publicity Stunt?

Posted by Alan Childress

In addition to sources we linked yesterday, consider also a very good account by AP's Lara Jakes Jordan here. She points out that the new DOJ policy means a prosecutor "[c]annot bring charges against corporations simply because they refuse to hand over confidential and so-called 'privileged' attorney-client information. Firms that do, however, will receive credit for cooperating." 

Although Jordan reports on and quotes whistleblower and corporate watchdog groups that are quite unhappy with Paul McNulty's revised policy, I'd say that the change in this regard is more semantics than overhaul--it is tweaking at best, as to the powerful waiver provision of the Thompson Memo, because the carrots and sticks remain much the same.  I doubt before that AUSA's were citing the failure to waive very often as the reason to charge, but I am certain they demanded [now request?] waiver to earn the carrot of being "cooperative."  Being labeled "uncooperative" is still a big stick no matter how much softer the McNulty speech. 

It also appears that ultimately a corporate payment of employees' attorneys' fees will still be considered pejoratively--or at least the risk of it is enough that it may well affect corporate behavior on this front too.  As AP notes, "the deputy attorney general could approve harsher charges in rare cases where the payments result in blocking the government's investigation."  I wonder how "rare" it will be that attorneys zealously protecting an individual client's best interest will be perceived by DOJ as "blocking the government's investigation"--for example by not waiving privilege, of course.

The announced revision certainly does not "protect" the attorney-client privilege in the way that the Specter legislation is meant to do.  Unless it works as a misdirection public-relations gambit, I predict that the McNulty Pocket Part will not forestall such legislation from at least trying to put this genie --> bottle.

Whether or not real reform is needed in this area, or the corporate watchdogs are right that these aspects of the Thompson Memo were [are, I'd say] good, the McNulty tweaking comes off to me as more publicity stunt than substantive reform.

UPDATE:  Excellent debate starting here at White Collar Crime Prof between its two editors, Peter Henning and Ellen Podgor.  First up:  is there any real remedy for violating the new policy?  Or the [proposed] legislation?  I'm looking forward to their hashing out all sorts of issues.