August 28, 2008
The Thompson McNulty Filip Memorandum
Posted by Christine Hurt

White collar crime followers will remember that before we started being concerned about DOJ hiring practices, we had begun to be concerned with the DOJ's prosecutorial practices, including pressuring corporate targets to waive attorney-client privilege and refuse to pay attorney fees for employees who were potential defendants.  These tactics were the result of guidelines outlined in an internal memo, first called the Thompson Memo, then the McNulty Memo, after the Deputy AGs who oversaw the drafting of those memos.  Well, the memo had been revised again, under the direction of Deputy AG Mark Filip.  So, why the Filip Memo?

These guidelines have been revised following congressional interest in regulating the DOJ's tactics.  In an effort to head off congressional action, specifically this proposed bill, the new guidelines "[prevent] prosecutors from asking companies under investigation to disclose attorney-client privileged information" and specify that "whether a company is paying legal fees of employees under investigation, or whether a company has entered into a joint defense agreement with employees" will not be relevant to a determination of whether the company is "cooperating" with prosecutors for purposes of the sentencing guidelines.

So, we'll see whether this attempt at self-regulation will halt proposed legislation and of course, what effects the revisions will have in practice.

UPDATE:  Apropos of pressuring companies not to pay attorney fees for employees, Miriam Baer just tells me that the Second Circuit just affirmed Judge Kaplan's slapdown of KPMG.

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Comments (1)

1. Posted by Josh on August 31, 2008 @ 12:53 | Permalink

A former student of yours, me, wrote his student comment on this topic. I am glad to see that the DOJ has shifted their thinking.

My guess is, considering the timing of my article's publication and the DOJ's change, that I single-handedly made a significant impact in the DOJ's rationale. This, of course, is despite the fact that nobody has yet to cite my article, at least according to Lexis and Westlaw, but they must be reading it. Right? ;)
See 91 Marq. L. Rev. 549 (2007).

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