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The McNulty Memorandum
The Department of Justice (DOJ), in the wake of increasing criticism of its policies on waiver of privileges by corporations and their advancement of legal fees to employees under investigation, issued a 21-page memorandum on Dec. 12, 2006, revising the 'Principles of Federal Prosecution of Business Corporations,' alias the Thompson Memorandum. The revised policy, embodied in a memorandum by Deputy Attorney General Paul D. McNulty, comes close on the heels of two influential attacks on the Thompson Memorandum: a bill sponsored by Sen. Arlen Specter (R-PA) that would prohibit prosecutors from pressing companies to waive privileges or cut off legal fees, and an opinion by Manhattan U. S. District Judge Lewis A. Kaplan, holding that prosecutors had violated the constitutional rights of former KPMG partners when they pressured KPMG to stop paying the ex-partners' lawyers. United States v. Stein, 435 F. Supp. 2d 330 (S.D.N.Y. 2006).
Attorney-Client and Work Product Privilege Waivers
The 2003 Thompson Memorandum listed nine criteria for federal prosecutors to consider in determining whether to charge corporations. Foremost in the minds of many prosecutors in the 94 districts across the country has been the fourth Thompson factor ' 'Cooperation and Voluntary Disclosure' ' which explicitly addressed waiver of privileges. Often the first topic raised by prosecutors with company counsel in white-collar criminal investigations is a call for the company to cooperate by handing over a privileged internal investigation report, memoranda of interviews, chronologies, and hot documents.
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