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Over-Assertion of Attorney-Client Privilege
Buried deep within the 69-page superseding indictment in the KPMG tax fraud case lies a development with the potential to chill the assertion of the attorney-client privilege by defense attorneys in criminal conspiracy cases. In the conspiracy count in United States v. Stein et al., S1 05 Cr. 888 (LAK) (S.D.N.Y., Oct. 19, 2005), the wrongful assertion of the attorney-client privilege has been charged as a central aspect of the crime itself, both as part of the means and methods of the conspiracy and as an overt act in furtherance. This aggressive charging decision may cause some members of the defense bar to think twice about asserting the privilege in close cases — even where it is being asserted legitimately — for fear that their claim of privilege may overreach, thus inadvertently implicating them in the underlying conspiracy.
There is no dispute that the attorney-client privilege is one of the pillars of the U.S. legal system. The benefit of the privilege is that it encourages “full and frank communications between attorneys and their clients,” Upjohn Co. v. United States, 449 U.S. 383 (1981), enabling lawyers to counsel their clients better and promoting compliance with the law through such counseling. In the criminal context, the privilege allows clients to speak to their attorneys with confidence that their words will not later be disclosed to prosecutors and used against them.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.