New Memo Won't Ease Attorney-Client Privilege Concerns

This article discusses whether the McNulty memo from the Department of Justice (DOJ) will alleviate concerns regarding DOJ’s aggressive pursuit of corporate attorney-client privilege waiver in fraud investigations. The author doubts this new memo will relieve critics’ fears because it does not reduce prosecutor’s incentive in seeking this waiver. The article discusses the Department of Justice’s initial policy, outlined in the Thompson Memo, following the high profile corporate fraud cases of the early 21st century. The Thompson Memo advocated aggressive pursuit of corporate attorney-client waiver in order to accelerate fraud investigations. The author explains the pressure on corporations to waive attorney-client privilege in order to cooperate with DOJ investigations and avoid indictments. However, waiver imposes additional liability on the corporation because civil litigants gain access to this unprotected information. The article explains that the McNulty Memo is a response to critics’ concerns regarding the loss of attorney-client privilege. The McNulty Memo requires prior approval from the Office of the U.S. Attorney before pursuing a corporate attorney-client waiver. However, the new memo still pressures corporations to waive attorney-client privilege because prosecutors continue to consider a corporation’s cooperation in the investigation when determining whether to seek criminal charges against the corporation.