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Is the White-Collar Defense Attorney Headed for Extinction?
In the 3 years since Former Deputy Attorney General Larry Thompson's expansion of the Principles of Federal Prosecution of Business Organizations (the 'Thompson Memorandum' or 'Memorandum'), the number of front-page corporate prosecutions and record fines have continued to grow. Prior Business Crimes Bulletin articles have discussed the impact of the Memorandum on the role of defense counsel, including the effects of waiver of corporate attorney-client privilege. However, the privilege is not all that is disappearing.
The Thompson Memorandum's call for 'increased emphasis on and scrutiny of the authenticity of a corporation's cooperation' threatens to shrink another mainstay of white-collar defense: advancement of legal fees. Will demand for corporate 'cooperation' make the defense attorney obsolete? This troubling question arose most recently and forcefully in the KPMG tax shelter case, where U.S. District Judge Lewis Kaplan ordered a hearing on whether the government and the Memorandum affected KPMG's determination to terminate advancement of legal fees for its former employees, now criminal defendants. The case shows how company-advanced attorneys' fees, long the fuel for vigorous defense by indicted employees, are threatened with extinction.
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