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Thursday, July 10, 2008

Head 'em off at the pass.

The guidelines and principles under which the Department of Justice investigates and prosecutes corporations, their officers and employees may finally change for the better. This week a contentious Senate hearing was held in which members of the Judiciary Committee grilled Attorney General Michael Mukasey on why he had not re-evaluated the controversial aspects of DOJ’s approach to criminal probes of companies. Those notorious issues include company waiver of the attorney-client privilege.

Immediately following the hearing, on the heels of hints by Mukasey that the tenets of prosecution would change, Deputy Attorney General Mark Filip sent ranking committee members, Senators Patrick Leahy and Arlen Spector, a letter regarding proposed transformations. The letter states that DOJ will no longer evaluate a company’s cooperation based upon its willingness to waive the attorney client privilege, its decision to advance legal fees to employees, its entry into joint defense agreements or whether it disciplines allegedly culpable employees. Whether or not a company is viewed as “cooperative” in a criminal investigation can mean the difference between the life support of a deferred prosecution or the corporate death penalty of indictment. However, over eighteen months ago Senator Spector sponsored legislation, the Attorney Client Privilege Protection Act of 2007, to accomplish these exact policy amendments. In addition, three weeks ago, thirty three former United States Attorneys urged Senator Leahy to hold a vote on the Spector legislation.

It’s about time. DOJ’s heavy handed approach which penalized companies for not waiving privilege, paying officer and employee legal fees and signing joint defense agreements has seriously undermined the integrity of the criminal justice process in white collar cases. The revisions promised by Deputy AG Filip, if drafted clearly and forcefully, should stop the blatant erosion of bedrock constitutional standards. The collateral consequences of the Bush Administration’s get-tough-on-corporate-crime policies have been extreme. Corporate officers and employees should be able to consult with company attorneys, exercise indemnification provisions for the payment of their own counsel and participate in joint defense arrangements without the fear of utter ruin. Big brother should not have such a powerful stick as to be able to force privileged secrets to be revealed and prevent people from having funds to hire lawyers. While DOJ’s belated change demonstrates a desire to beat the Senate to the punch, I hope the altered course will be clear and true. CR

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