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The Fifth Amendment, Vicarious Liability, and the Attorney-Client Privilege
Waiver of the attorney-client privilege by corporations “cooperating” with the government during investigations of alleged misconduct has become an issue of increasing concern within the legal community. Current U.S. Department of Justice policy, as set forth in a document entitled “Principles of Federal Prosecution of Business Organizations” (dated Jan. 20, 2003, and found at www.usdoj.gov/dag/cftf/corporate_guidelines.htm.), sets forth a number of factors that federal prosecutors should consider when contemplating whether or not to criminally charge a corporation. It clearly states that “[g]enerally, prosecutors should apply the same factors in determining whether to charge a corporation as they do with respect to individuals.” This policy statement goes on, however, to note that “due to the nature of the corporate 'person,' some additional factors are present,” including “[t]he corporation's timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of the corporate attorney-client privilege and work-product protection.”
The policy statement discusses at great length why a waiver may be necessary. For instance, it states that “a corporation's cooperation may be critical in identifying the culprits and locating relevant evidence.” It further points out, “[i]n some circumstances, therefore, granting a corporation immunity or amnesty or pretrial diversion may be considered in the course of the government's investigation.” Importantly, while the Memo states that waiver of the privilege is not required, it may be necessary in “appropriate circumstances.”
Unbelievably, there is no guidance on what those appropriate circumstances might be, and it is left to the discretion of local decision-makers as to how to proceed. Indeed, the description of how waivers can be helpful would arguably apply in every federal investigation: “[s]uch waivers permit the government to obtain statements of possible witnesses, subjects, and targets, without having to negotiate individual cooperation or immunity agreements. In addition, they are often critical in enabling the government to evaluate the completeness of a corporation's voluntary disclosure and cooperation.” Such language can easily be interpreted to mean that there is no case in which seeking a waiver is not appropriate. At minimum, federal prosecutors are being given the message that “it never hurts to ask.” While it is clear that corporations are not to be treated any more or less harshly than individual targets, the DOJ's current policy pronouncement impacts them in different ways. A corporation, in a legal sense, is more vulnerable than a “two-legged” defendant for at least two important reasons: 1) An organization has no Fifth Amendment privilege against self-incrimination; and, 2) An organization is vicariously liable for the actions of its agents. The attorney-client privilege is one of the few areas in which an organization has comparable rights with individual targets.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.