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McNulty Revisited
On Aug. 28, 2008, Deputy Attorney General Mark Filip released the latest in a series of memoranda that guide the Department of Justice's (“DOJ”) approach to the investigation and prosecution of corporate crimes. Issued primarily in response to criticism from legal scholars who bemoaned prosecutors' attacks on the attorney-client and work product privileges and institutional prejudice against advancement and joint defense agreements, the Filip Memo represents the government's attempt to balance these concerns with its obligation to enforce the law aggressively and its goal of promoting responsible corporate behavior. This article briefly reviews the history of the DOJ's corporate charging guidelines, discusses the policy changes from the DOJ's earlier charging guidelines, and analyzes the Filip Memo's impact on corporate investigations and prosecutions.
From Holder to McNulty
Almost a decade ago, the DOJ issued the first in a series of memoranda, designed to bring uniformity to federal investigations and prosecutions of corporate misconduct. The Holder Memo, named for then Deputy Attorney General Eric Holder and issued on June 16, 1999, emphasized the value of corporate cooperation in federal investigations and identified several factors that prosecutors could consider on an advisory basis in addressing mitigation of a company's exposure to criminal liability: 1) waiving attorney-client and work product privileges; 2) refusing to provide advancement/indemnification to officers and directors charged with or suspected of misconduct; 3) implementing remedial/restitution programs; 4) disciplining culpable employees; and 5) avoiding joint defense agreements. In the wake of Enron, Worldcom, Adelphia, Tyco and other corporate scandals, Deputy Attorney General Larry Thompson issued his own memorandum (“the Thompson Memo”) on Jan. 20, 2003, which made the advisory principles outlined in the Holder Memo mandatory on federal prosecutors.
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