DOJ Revises Corporate Charging Guidelines with Respect to the Waiving of Attorney-Client Privilege and Cooperation
09/01/08 10:42 PM Filed in: DOJ
On
August 28, 2008, the U.S. Department of Justice
(DOJ) announced that it is
revising its corporate charging guidelines for
federal prosecutors throughout the nation with
respect to prosecuting corporate fraud. The
Department’s Principles of Federal Prosecution
of Business Organizations govern how all federal
prosecutors investigate, charge, and prosecute
corporate crimes.
The revisions will for the first time be included in the United State’s Attorney’s Manual, which is binding on all Department of Justice federal prosecutors. Before the current revisions, the regulations were published in the form of DOJ’s internal legal memorandum, also known as the McNulty Memorandum. The revised Principles will be effective immediately.
The first important revision affects credit for cooperation. The revised guidelines state that credit for cooperation will depend on the disclosure of relevant facts, rather than corporation’s waiver of attorney-client privilege or work product protection. Thus, whether or not a corporation waives attorney-client privilege or work product, it may receive due credit for cooperation if they disclose relevant facts. Conversely, if a corporation fails to disclose relevant facts, it may not receive credit for cooperation.
The second important provision affects the federal prosecution’s ability to receive non-factual attorney-client privileged communications and work product. While under the old regulations federal prosecutors were allowed to request such information, titled “Category II” information, the new guidelines forbid it, with two exceptions well established in existing law.
Among other significant changes, the new guidelines instruct prosecutors not to consider a corporation’s advancement of legal fees to employees when evaluation cooperativeness. Moreover, the new regulations establish that corporation may participate in a joint defense agreement and still be eligible for cooperation credit.
Finally, federal prosecutors will be prohibited to consider whether a corporation sanctioned or retained culpable employees in evaluating whether credit for cooperation should be granted.
The revised "Principles of Federal Prosecution of Business Organizations" can be found here.
The revisions will for the first time be included in the United State’s Attorney’s Manual, which is binding on all Department of Justice federal prosecutors. Before the current revisions, the regulations were published in the form of DOJ’s internal legal memorandum, also known as the McNulty Memorandum. The revised Principles will be effective immediately.
The first important revision affects credit for cooperation. The revised guidelines state that credit for cooperation will depend on the disclosure of relevant facts, rather than corporation’s waiver of attorney-client privilege or work product protection. Thus, whether or not a corporation waives attorney-client privilege or work product, it may receive due credit for cooperation if they disclose relevant facts. Conversely, if a corporation fails to disclose relevant facts, it may not receive credit for cooperation.
The second important provision affects the federal prosecution’s ability to receive non-factual attorney-client privileged communications and work product. While under the old regulations federal prosecutors were allowed to request such information, titled “Category II” information, the new guidelines forbid it, with two exceptions well established in existing law.
Among other significant changes, the new guidelines instruct prosecutors not to consider a corporation’s advancement of legal fees to employees when evaluation cooperativeness. Moreover, the new regulations establish that corporation may participate in a joint defense agreement and still be eligible for cooperation credit.
Finally, federal prosecutors will be prohibited to consider whether a corporation sanctioned or retained culpable employees in evaluating whether credit for cooperation should be granted.
The revised "Principles of Federal Prosecution of Business Organizations" can be found here.