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The Fifth Amendment, Vicarious Liability, and the Attorney-Client Privilege
Waiver of the attorney-client privilege by corporations “cooperating” with the government during investigations of alleged misconduct has become an issue of increasing concern within the legal community. Current U.S. Department of Justice policy, as set forth in a document entitled “Principles of Federal Prosecution of Business Organizations” (dated Jan. 20, 2003, and found at www.usdoj.gov/dag/cftf/corporate_guidelines.htm.), sets forth a number of factors that federal prosecutors should consider when contemplating whether or not to criminally charge a corporation. It clearly states that “[g]enerally, prosecutors should apply the same factors in determining whether to charge a corporation as they do with respect to individuals.” This policy statement goes on, however, to note that “due to the nature of the corporate 'person,' some additional factors are present,” including “[t]he corporation's timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of the corporate attorney-client privilege and work-product protection.”
The policy statement discusses at great length why a waiver may be necessary. For instance, it states that “a corporation's cooperation may be critical in identifying the culprits and locating relevant evidence.” It further points out, “[i]n some circumstances, therefore, granting a corporation immunity or amnesty or pretrial diversion may be considered in the course of the government's investigation.” Importantly, while the Memo states that waiver of the privilege is not required, it may be necessary in “appropriate circumstances.”
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.