DOJ Revises Charging Guidelines for Prosecuting Corporate Crimes
September 8, 2008
On August 28, 2008, Mark R. Filip, Deputy Attorney General of the Department of Justice (DOJ), announced that the DOJ had made significant revisions to its policy regarding the investigation and prosecution of corporate crimes, particularly in the area of cooperation between corporations and the government. These revisions have been long-awaited by corporations and many in the legal community who have argued that federal prosecutors have made unfair demands of corporations, particularly with respect to the waiver of attorney-client or work-product protections and the delivery of privileged materials as a necessary condition for a corporation to receive credit for cooperating with federal prosecutors. Mr. Filip highlighted the following five principal revisions to the DOJ’s policy in the press conference held on August 28, 2008:
- First, the decision to grant a corporation credit for cooperation will depend on the disclosure of relevant facts by the corporation and will not depend on whether a corporation has waived the attorney-client privilege or work product protection or produced materials protected by the attorney-client or work-product protections.
- Second, federal prosecutors will be prohibited, with certain exceptions, from asking for the disclosure of non-factual attorney-client privileged communications and work product, such as legal advice.
- Third, federal prosecutors when evaluating a corporation’s level of cooperation are instructed not to consider whether a corporation has advanced attorneys’ fees to its employees, officers, or directors. A corporation’s payment of or advancement of attorneys’ fees to its employees will be relevant only when, combined with other circumstances, it would give rise to criminal obstruction of justice.
- Fourth, federal prosecutors when evaluating whether to give a corporation credit for cooperating will not be allowed to consider whether the corporation has entered into a joint defense agreement. The government may, however, ask that a corporation refrain from disclosing information to a third party that the government provided to the corporation.
- Fifth, federal prosecutors when evaluating a corporation’s level of cooperation will not be allowed to consider whether a corporation disciplined or terminated employees. Prosecutors may, however, consider whether a corporation disciplined employees that the corporation identifies as culpable but only for the purpose of evaluating the corporation’s remedial measures or compliance program.
The revised principles will be included in the United States Attorneys’ Manual and will be binding on all federal prosecutors within the DOJ, effective immediately.
http://www.usdoj.gov/opa/pr/2008/August/08-odag-757.html
http://www.usdoj.gov/dag/speeches/2008/dag-speech-0808286.html
http://www.usdoj.gov/opa/documents/corp-charging-guidelines.pdf
For more information, contact:
Kara L. MacCullough
305.789.7548
kara.maccullough@hklaw.com
Esther L. Moreno
305.789.7442
esther.moreno@hklaw.com
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