In the Courts
July 31, 2006
Important rulings of importance to you and your practice.
Selective Privilege Waiver and Proposed FRE 502
July 31, 2006
This summer, the standing committee on the federal rules of the Supreme Court's Judicial Conference will propose for public comment Federal Rule of Evidence 502 and Committee Notes, initially drafted and recommended by the Advisory Committee on Evidence Rules. Proposed Rule 502 addresses the waiver of privilege arising from the production of documents: the effect of inadvertent production, the scope of the waiver arising from both inadvertent and intentional production, and ' the subject of this article ' the effect on future claims of privilege of producing documents to the government in the course of an investigation.
Attacking Attorney-Client Privilege the Old-Fashioned Way
July 31, 2006
Federal prosecutors continue to attack attorney-client privilege through aggressive use of the crime-fraud exception ' a government tactic easy to forget amidst the hoopla surrounding the government's attempts to exact attorney-client privilege waivers as the sine qua non of cooperation. A recent Third Circuit case illustrates the worrisome potential breadth of the exception.
Thompson Memorandum on Fees Found Unconstitutional
July 31, 2006
Strong words: KPMG refused to pay its employees' legal fees because prosecutors held a 'gun to its head,' and the government thus 'violated the Constitution it is sworn to defend.' This statement from U.S District Judge Lewis A. Kaplan in the KPMG tax shelter case has shaken the foundations of corporate prosecutorial policy. <i>United States v. Stein et al.</i>, 2006 WL 1735260, (S.D.N.Y. June 26, 2006).
<b>BREAKING NEWS: </b>THOMPSON MEMORANDUM ON FEES FOUND UNCONSTITUTIONAL
July 14, 2006
KPMG refused to pay its employees' legal fees because the government held a 'gun to its head' and thus 'violated the Constitution it is sworn to defend.' These strong words from U.S. District Judge Lewis A. Kaplan in the KPMG tax shelter case have shaken the foundations of corporate prosecutorial policy. <i>United States v. Stein et al.</i>, 2006 WL 1735260, (S.D.N.Y. June 26, 2006).READ THE FULL STORY FROM THE ATTORNEY WHO WON THE RULING IN THE AUGUST, 2006, ISSUE, ONLINE AUGUST 1!
Confidential Client Communications? Maybe Not
June 28, 2006
Former SEC Chairman William H. Donaldson noted in a March 5, 2004 speech that SOX was needed to deal with 'a general erosion of standards of integrity and ethics in the corporate and financial world ... The acquiescence by the gatekeepers, like accountants, who turned their backs or actually condoned such accounting manipulation, combined with stock option incentives to management, fueled the short-term focus.' Ironically, the SEC and the Department of Justice, which enforce SOX's criminal provisions, appear ready to burden the traditional ethical obligations of corporate legal counselors to keep client communications confidential in an effort to police the integrity and ethics of other corporate gatekeepers.
'Misprision of a Felony'
June 28, 2006
Notwithstanding the continuing reliance of federal courts on the Federal Sentencing Guidelines, they recognize that Congress did not intend to weaken the plea bargaining system when it enacted the Sentencing Reform Act. Given the formulaic nature of the guidelines, plea bargaining may be the best way to secure the most advantageous result for a client facing federal criminal charges. One bargaining tool is for defense counsel to suggest that his client plead to an alternative charge, such as misprision of a felony, 18 U.S.C. ' 4.
Compliance and Ethics Programs: Passivity Is Passe
June 28, 2006
What changes did the Sentencing Commission make last year? Several general themes emerge. First, the Sentencing Commission attempted to create responsibility and more direct accountability on the part of corporate management for the existence and operation of a compliance and ethics program. Second, the Sentencing Commission created some specific responsibilities, in respect of the compliance and ethics program, for the 'governing authority' of the entity, which for a corporation is the board of directors. Third, the Sentencing Commission clarified that training is a mandatory means by which to 'communicate ... its standards and procedures' to all employees, including directors and management, and, as appropriate, third-party agents. This article examines those themes in greater detail.
