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New DOJ Guidelines on Prosecuting Businesses

By Stanley S. Arkin, Peter B. Pope and Barrett N. Prinz
September 24, 2008

In the post-Enron era of aggressive criminal investigations of corporate malfeasance, the Department of Justice (DOJ) issued a series of Memos on the prosecution of business organizations. Known by the name of the Deputy Attorneys General who authored them, the Holder, Thompson and McNulty Memos soon struck fear in the hearts of business entities. They essentially required businesses to adhere to a strict list of requirements to avoid being indicted by the government. Companies came to assume that prosecutors would expect complete acquiescence to the guidelines, including waiving attorney-client and work product privileges, cutting off legal fees for employees under investigation, and terminating uncooperative employees.

After much pressure from the defense bar, the judiciary and Congress, the DOJ issued new guidelines on Aug. 28, 2008. In announcing them, Deputy Attorney General Mark R. Filip assured the public that cooperation credit will no longer depend on a corporation's waiver of privilege, prosecutors will no longer be allowed to request disclosure of non-factual privileged information, and no consideration will be given to a corporation's advancement of attorney's fees for its employees. A close look at the fine print, however, shows that not much has changed.

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