Critics work to overrun memo on corporate prosecution

By Chris Rizo | Jun 22, 2008

Michael Mukasey

WASHINGTON (Legal Newsline)-A group of 32 former U.S. Attorneys are urging the chairman of the U.S. Senate Judiciary Committee to hold a vote on legislation aimed at protecting attorney-client privilege for corporations.

In a letter to Sen. Patrick Leahy, D-Vt., the former Justice Department officials criticized the so-called McNulty Memorandum that allows federal prosecutors to pressure corporations to waive their privilege in return for leniency.

"The widespread practice of requiring waiver has led to the erosion not only of the privilege itself, but also to the constitutional rights of the employees who are caught up, often tangentially, in business investigations," the former U.S. attorneys said.

They are seeking a vote on a bill that would bar the practice. Under the legislation, the Attorney-Client Privilege Protection Act of 2007, federal prosecutors would be unable to use a waiver as a factor in determining whether to indict a corporation.

Introduced by Sen. Arlen Specter, R-Pa., the bill would also bar prosecutors from forcing a corporation to submit its attorneys' work product.

A version of the bill passed in the House last fall.

In the memo, Deputy U.S. Attorney General Paul McNulty said federal prosecutors should consider nine factors when deciding whether to charge or negotiate a plea in corporate criminal cases.

If a company faces criminal charges that doesn't necessarily mean that corporate directors, officers, and other employees should not also be charged, he wrote.

The Association of Corporate Counsel is also opposed to provisions in the memo.

Proponents say the memo helps the government uncover corporate malfeasance that is often perpetrated to the detriment of investors and pension holders.

Earlier this month, U.S. Attorney General Michael Mukasey said the memo doesn't need to be changed.

"There are some people who favor legislation. We think and continue to think that the McNulty memo is working and has worked," Mukasey told reporters.

"There were either no or very, very, very small numbers for actual requests of waiver of the privilege. There were requests for information," he added.

From Legal Newsline: Reach reporter Chris Rizo by e-mail at chrisrizo@legalnewsline.com.

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