White Collar Crime / Criminal Defense

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1 OCTOBER 2005 White Collar Crime / Criminal Defense Justice Department Addresses Waivers of Privilege A memorandum from the Department of Justice within the past week asserts a new policy providing for increased oversight of an individual federal prosecutor s decision to pressure a corporation to waive the attorney-client privilege and/or its workproduct protection. 1 Yet, this new directive is seriously flawed, providing no standards, no real guidance, and no meaningful oversight. In short, it is likely to accomplish little, if anything, in the way of modifying the current controversial Justice Department practice. BACKGROUND In January 2003, then Deputy Attorney General Larry D. Thompson set forth a policy statement for federal prosecutors respecting whether or not to file criminal charges against corporations and other business organizations. See, Principles of Federal Prosecution of Business Organization (January 20, 2003) ( Thompson Memorandum ). In this Memorandum, Deputy Attorney General Thompson set forth nine criteria that govern prosecutorial decisions: 1. the nature and seriousness of the offense; 2. the persuasiveness of wrongdoing within the corporation; 3. the corporation s policy of similar conduct; 4. the corporation s timely and voluntary disclosures of wrongdoing and its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of corporate attorneyclient and work-product protection. (emphasis added); 5. the existence and adequacy of the corporation s compliance program; 6. the corporation s remedial actions; 7. collateral consequences including disproportionate harm to shareholders; 8. the adequacy of the prosecution of individuals responsible for the corporation s malfeasance; and 9. the adequacy of civil remedies or regulatory enforcement actions. Many federal prosecutors have interpreted the policy as justification to insist, and in some cases virtually demand, that a corporation use its resources not only to conduct a thorough investigation, but far more significantly, to turn over the fruits of its efforts to the government. In fact, it has become routine for federal prosecutors to demand witness statements, attorneys impression of witnesses, and core attorney-client privileged communications and attorney work product. Thus, the practical effect of the Thompson Memorandum has been to encourage, if not require, waiver of these valuable rights in almost every case involving alleged corporate malfeasance. Cooperation without waiver of these valuable rights effectively is considered no cooperation at all. Indeed, some prosecutors even go so far as to set limits on what corporate counsel can say to individual corporate officers, or to the attorneys representing them, threatening that any information sharing could be considered uncooperative behavior. In the aftermath of the Thompson Memorandum, it was reported that further Justice Department guidance would be forthcoming to stem such abuses. See e.g., Corporate Crime Reporter, dated October 13, It is striking, however, that no such further guidance was forthcoming for more than two-and-a-half years after release of the Thompson Memorandum. This new guidance of October 21, 2005 was published only in 1. This memorandum is set forth in its entirety in Appendix A-1

2 the aftermath of the ABA resolution in August of this year, which stated, among other things: that the American Bar Association opposes the routine practice by government officials of seeking to obtain a waiver of the attorney-client privilege or work product doctrine through the grant or denial of any benefit or advantage. 2 In addition to the fact that the most recent Justice Department directive provides no guidance as to when, and under what circumstances, waivers should be sought, it is further flawed by the fact that all decisions are left to individual United States Attorneys Offices with no oversight by Washington. The Justice Department directive provides only that each United States Attorneys Office is: directed to establish a written waiver review process for your district or component. The United States Attorney s Manual will be amended to reflect this policy. Such waiver review processes may vary from district to district... so that each United States Attorney... retains the prosecutorial discretion necessary, consistent with their circumstances, to seek timely, complete, and accurate information from business organizations. See Waiver of Corporate Attorney-Client and Work- Product Protection Memorandum dated October 21, 2005 from Robert D. McCallum, Jr., Acting Deputy Attorney General. ANALYSIS It is unlikely that the new policy, if it can even be called that, will have the effect of eliminating the almost routine request for waivers of attorney-client privileges and attorney work-product. Because the new memorandum from Acting Deputy Attorney General McCallum contains no substantive guidance, each District will be permitted to develop its own policies and implement these policies as it sees fit. Thus, it is unlikely that current practices will change in most districts that require corporations to conduct their own exhaustive internal investigations and then to disclose all the details of those efforts, including those that the government could otherwise not compel because they would be privileged or otherwise protected. The most immediate effect of the new policy may do two things, however: First, it should give corporate defense counsel at least some chance to incrementally cooperate in those districts still formulating their written procedures. That is, it may be possible to protect attorney-client communications or work-product from routine immediate disclosure at least at the outset of a governmental criminal inquiry. Second, it could, but it is far from clear that it will, lead to increased supervisory oversight, reining in unreasonable requests by overly aggressive prosecutors. Perhaps the most dramatic effect of the new precedent no doubt is designed to silence critics from the defense community who have complained, and continue to complain about the almost routine nature of waiver requests. The Department undoubtedly will now refer these critics to each District s policy and leave it up to individual United States Attorneys to deal with any criticism on a case-by-case basis. All in all, this is not a very satisfactory response when core rights that underpin our legal process are at stake. Unfortunately, this new practice brings to mind the old adage that the more things change, the more they stay the same. Stephen W. Grafman Jeffrey L. Bornstein The entire resolution is set forth in Appendix A-2 2 OCTOBER 2005 KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP

3 APPENDIX A-1 A-1 OCTOBER 2005 KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP

4 APPENDIX A-2 The full text of the ABA attorney-client privilege resolution reads in full: RESOLVED, that the American Bar Association strongly supports the preservation of the attorney-client privilege and work product doctrine as essential to maintaining the confidential relationship between client and attorney required to encourage clients to discuss their legal matters fully and candidly with their counsel so as to (1) promote compliance with law through effective counseling, (2) ensure effective advocacy for the client, (3) ensure access to justice and (4) promote the proper and efficient functioning of the American adversary system of justice; and FURTHER RESOLVED, that the American Bar Association opposes policies, practices and procedures of governmental bodies that have the effect of eroding the attorney-client privilege and work product doctrine and favors policies, practices and procedures that recognize the value of those protections; FURTHER RESOLVED, that the American Bar Association opposes the routine practice by government officials of seeking to obtain a waiver of the attorney-client privilege or work product doctrine through the grant or denial of any benefit or advantage A-2 OCTOBER 2005 KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP

5 K&LNG has experienced white collar partners in its offices throughout the country including former Attorney General Richard Thornburgh in Washington, D.C., former Assistant United States Attorneys in Boston, New Jersey, Pittsburgh and San Francisco, a former State Attorney General in New Jersey and former local prosecutors in Dallas, Miami and New York inaddition to experienced white collar practioners in other offices. If you have questions or would like more information about K&LNG s White Collar Crime/Criminal Defense practice, please contact one of our White Collar Crime/Criminal Defense lawyers listed below: Boston Michael DeMarco Michael D. Ricciuti John A. Wortmann, Jr Dallas Jacqueline R. Peterson Los Angeles Richard P. Crane, Jr Miami Beatrice A. Butchko Newark John A. Azzarello John J. Farmer David S. Kwon New York Eva M. Ciko William O. Purcell Pittsburgh Mark A. Rush San Francisco Jeffrey L. Bornstein Washington, D.C. Dick Thornburgh Stephen W. Grafman Barry M. Hartman BOSTON DALLAS HARRISBURG LONDON LOS ANGELES MIAMI NEWARK NEW YORK PALO ALTO PITTSBURGH SAN FRANCISCO WASHINGTON Kirkpatrick & Lockhart Nicholson Graham LLP (K&LNG) has approximately 1,000 lawyers and represents entrepreneurs, growth and middle market companies, capital markets participants, and leading FORTUNE 100 and FTSE 100 global corporations nationally and internationally. K&LNG is a combination of two limited liability partnerships, each named Kirkpatrick & Lockhart Nicholson Graham LLP, one qualified in Delaware, U.S.A. and practicing from offices in Boston, Dallas, Harrisburg, Los Angeles, Miami, Newark, New York, Palo Alto, Pittsburgh, San Francisco and Washington and one incorporated in England practicing from the London office. This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. Data Protection Act We may contact you from time to time with information on Kirkpatrick & Lockhart Nicholson Graham LLP seminars and with our regular newsletters, which may be of interest to you. We will not provide your details to any third parties. Please if you would prefer not to receive this information KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP. ALL RIGHTS RESERVED.

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