On Aug. 28, 2008, the United States Department of Justice (DOJ) announced a major change in the way it will assess "cooperation" by a corporation in a criminal investigation.
Under previous DOJ policy, prosecutors were permitted--and sometimes encouraged--to ask companies under investigation to waive the attorney-client privilege as a condition of more favorable treatment in the investigation or even as a prerequisite to a finding that the company had "cooperated" in the investigation. Waiving the attorney-client privilege obviously had a chilling effect on a company's ability to seek and obtain legal advice when confronted with difficult legal issues.
After enduring a storm of criticism and facing the prospect of a legislative fix by Congress, the DOJ has now backed down from those earlier principles. Deputy Attorney General Mark R. Filip's announcement of the revisions to corporate charging guidelines is available at this link. The DOJ's revised Corporate Charging Guidelines are available at this link.
Key elements of the announcement include the following:
- Prosecutors are now forbidden from requesting that a
company produce its confidential, non-factual,
attorney-client privileged communications or work product as
part of its cooperation. Credit for cooperation,
however, will continue to be given for the disclosure of
relevant non-privileged facts and evidence.
- Companies are now permitted to advance legal fees on
behalf of employees, officers and directors without fear that
doing so will be held against them.
- Companies may now enter into Joint Defense Agreements
without fear that they will be viewed negatively by the
government.
These are all welcome and appropriate changes which will enable companies under investigation to seek legal guidance without fear that their privileged communications might ultimately wind up in the hands of the government. Companies will also be able to provide counsel to valued employees without worrying that the government will look askance at the support.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.