Cynical views that the McNulty Memorandum will not bring about any substantial change are prevalent, but certainly not universal. According to a former Assistant United States Attorney who spent twelve years with the Los Angeles United States Attorneys Office prosecuting white collar and securities fraud cases, the McNulty Memorandum “is likely to
substantially curtail waiver requests from line prosecutors.” David Z. Seide, Department of Justice McNulty Memo Curtails Controversial Portions of Thompson Memo–Legislation Introduced in the Senate, December 13, 2006. (Available at http://www.wilmerhale.com/publications/whPubsDetail.aspx?publication=3507. Requiring prosecutors to run waiver requests up the flagpole will be a time-consuming process. These requests will require prosecutors to write lengthy memoranda and will involve significant internal review. “This hurdle provides a sensible check on local prosecutorial discretion while assuring nationwide consistency in the application of waiver demands.” Id.
According to one commentator, the McNulty Memorandum was a missed opportunity for the DOJ to reconsider its policies on prosecuting business organizations. See William M. Sullivan, Jr., The McNulty Memorandum: New DOJ Policies On Attorney-Client Privilege and Attorney Work Product Protections, The Metropolitan Corporate Counsel, February 2007, at 34. (http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=February&artYear=2007&EntryNo=6208). Because it is much easier to investigate individuals in the organization that are guilty of misconduct, considering the prevalent use of corporate control mechanisms and the paper trail left by e-mail, it makes less and less sense to prosecute businesses and hold the entire organization accountable for the misdeeds of a few identifiable bad apples. Such prosecutions hold innocent shareholders, directors, officers, and other employees responsible for acts that they did not commit or even know about. Since the purpose of criminal prosecution is to punish those individuals responsible for committing crimes, “criminal prosecution of business organizations should be an exceedingly rare undertaking.” Id.
On December 12, 2006, ABA President Karen J. Mathis issued a statement addressing the McNulty Memorandum. See http://www.abanet.org/abanet/media/statement/statement.cfm%20?releaseid=59. In the statement, Ms. Mathis stated that the guidelines “fall far short of what is needed to prevent full erosion of fundamental attorney-client privilege, work product, and employee protections during government investigations.” The memorandum does not eliminate waiver requests, but merely requires that prosecutors get approval from higher levels of the DOJ in order to make the requests. “As such, the McNulty Memorandum threatens to further erode the ability of corporate leaders to seek and obtain the legal guidance they need to effectively comply with the law.” Ms. Mathis urged Congress to pass Senator Specter’s bill in order to protect the privileges and prevent the government from seeking these waivers.
More later.
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