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Penance But No Absolution
The legal fiction of corporate criminal liability may finally get the rewrite it badly needs. Urged by practitioners and academics for decades, arguments for changing corporate criminal liability, if not abolishing it altogether, may now have a receptive audience in Washington.
Recent concerns about the overreaching of prosecutors who extract corporate privilege waivers and pressure companies to cut off employees' legal fees ' issues that surfaced prominently in the KPMG case ' led to Senate Judiciary Committee hearings and proposed legislation by Senator Arlen Specter (R-PA) that would prohibit the government from demanding, or 'conditioning treatment' on, corporate privilege waivers, or conditioning a civil or criminal corporate charging decision on whether a company advances legal fees to its employees. Perhaps to preempt Senator Specter's proposal, on Dec. 12, 2006, the Department of Justice (DOJ) issued a memorandum from Deputy Attorney General Paul McNulty revising the Thompson Memorandum. The pertinent changes include requiring requests for corporate privilege waivers to be approved by senior DOJ officials, and instructing prosecutors that they are not to consider whether a company is advancing fees in charging decisions unless advancement is intended to 'impede' a criminal investigation.
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Bit Parts
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