Corporate Compliance

DOJ changes definition of cooperation when investigating organizations

Compliance Monitor, July 16, 2008

On July 9, Deputy Attorney General Mark Filip disclosed that the government would no longer consider whether the company waived the attorney-client privilege when determining cooperation. Category II of the McNulty Memorandum required corporations to disclose attorney-client information in order to receive “cooperation credit.”
 
Filip said Congress can expect a revised version of the McNulty Memo. The new memo is expected to state the government will :
  • Measure cooperation by the extent the company discloses facts, not by its waiver.
  • Not demand non-factual work product and attorney-client information.
  • Not consider whether the company has advanced legal fees to employees in assessing company cooperation.
  • Not consider whether the company is part of any joint defense agreements in assessing company cooperation.
  • Not consider whether the company has sanctioned employees in assessing cooperation. The government will continue to assess such actions in determining the quality or effectiveness of remedial actions or its compliance program.
The information was disclosed in the form of a letter to Senators Patrick Leahy and Arlen Specter. In the past, Specter has been vocally opposed to the McNulty Memo and has introduced legislation aimed at addressing the issue of attorney-client privilege in the document. Filip asked Specter to wait until a revised McNulty Memo and possible subsequent memo is released before going forward with his legislation.
 
Specter responded with his own letter calling Filip’s letter too vague and asking for more information. Specter also expressed his desire to pursue a legislative fix to the issue.
 
To read Filip’s letter, click here
To read Specter’s response, click here

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