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The McNulty Memo

By Steven P. Solow

On Dec. 12, 2006 the U.S. Justice Department issued new guidance that will require federal prosecutors to seek approval from senior DOJ officials before requesting a waiver of attorney-client privilege and work product protection in corporate criminal investigations. The new guidance supersedes the existing language on waiver in the 'Thompson memo,' issued by then-Deputy Attorney General Larry D. Thompson in January 2003.

The Thompson memo, formally titled 'Principles of Federal Prosecution of Business Organizations,' provided nine factors for prosecutors to consider when deciding whether to bring criminal charges against a corporation. Included among those factors is a consideration of whether the corporation indicated a 'willingness to cooperate' with the investigation by, among other things, disclosing complete results of internal investigations and waiving attorney-client and work product protection.

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