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An Offer You Can't Refuse?

By Joseph F. Savage, Jr. and Stephanie R. Pratt
August 18, 2003

The Department of Justice is drafting defense counsel to fight its latest war: this one on corporate crime. At the beginning of this year, the DOJ effectively imposed an obligation of self-disclosure of crimes on corporations, accelerating a government-wide trend where companies, through their lawyers, are expected not only to obey the law, but also to investigate and enforce it as well. On January 20, 2003, Deputy Attorney General Larry Thompson emphasized 'voluntary' self-disclosure in modifying DOJ policies governing the prosecution of corporations in a memorandum entitled 'Principles of Federal Prosecution of Business Organizations' (the 'Thompson Memo'), which amends Deputy Attorney General Eric Holder's 1999 memorandum, 'Bringing Criminal Charges Against Corporations' (the 'Holder Memo').

The government's expectations have evolved from a policy of encouraging self-disclosure to one that independently punishes failure to self-disclose. This trend is not unique to the DOJ. The Office of Inspector General of the Department of Health and Human Services (OIG HHS), for example, likewise views failure to report corporate wrongdoing as hindering justice. Thus, practitioners representing corporations must recognize that the government now views corporate clients as having two jobs ' providing goods and services and self-policing and reporting infractions.

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