On Thursday, August 28, 208, Deputy Attorney General Mark R. Filip announced that the USDOJ has revised its corporate charging guidelines. The new guidelines address one issues of particular interest, the area of cooperation credit.
The revised guidelines state that credit for cooperation will not depend on the corporation’s waiver of attorney-client privilege or work product protection. Rather, credit for cooperation will depend upon the disclosure of relevant facts. Corporations that disclose relevant facts may receive due credit for cooperation, regardless of whether they waive attorney-client privilege or work product protection in the process. Corporations that do not disclose relevant facts may not receive such credit.
Under the predecessor policies (the Thompson and McNulty memorandums) federal prosecutors were allowed to request the disclosure of non-factual attorney-client privileged communications and work product. With two well established exceptions, the new guidance forbids it.
The new guidelines also introduce changes beyond the question of attorney-client privilege and work product waivers. They instruct prosecutors not to consider a corporation’s advancement of attorneys’ fees to employees when evaluating cooperativeness. They also make clear that the mere participation in a joint defense agreement will not render a corporation ineligible for cooperation credit. In addition, the new guidance provides that prosecutors may not consider whether a corporation has sanctioned or retained culpable employees in evaluating whether to assign cooperation credit to the corporation.
The announced revisions and policy changes will be committed for the first time to the United States Attorneys Manual, which is binding on all federal prosecutors within the USDOJ and are effective immediately.
For more information about the USDOJ’s Principles of Federal Prosecution of Business Organizations, you can visit the USDOJ’s web site at http://www.usdoj.gov.
To read Deputy Attorney General Mark R. Filip’s speech announcing the changes - http://www.usdoj.gov/dag/speeches/2008/dag-speech-0808286.html
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