DOJ Reevaluating McNulty Attorney-Client Privilege Memo

Deputy Attorney General Addresses Waiver Of Attorney-Client Privilege As A Factor In Current Corporate Investigation Policy

During Attorney General Michael Mukasey’s testimony before the Senate Judiciary Committee on July 9, 2008, the subject of the McNulty Memorandum and DOJ application of the attorney client privilege in corporate investigations came up. Attorney General Mukasey noted the department was in the process of considering revisions to the policy reflected in the McNulty Memo. The AG announced that a new policy would be set out in a forthcoming letter to the Committee by Deputy Attorney General Mark Filip.

Later that same day, Deputy Attorney General Mark Filip sent Senate Judiciary Committee Chairman Patrick Leahy and Ranking Member Arlen Specter a letter summarizing his review of DOJ policy. The letter noted that no prosecutor requests for non-factual attorney-client communications or attorney work product had been received by the DOJ in the last 18-months. These are requests for "Category II" information under the McNulty Memo. See McNulty Memo, at 10 (noting Category II information includes "legal advice given to the corporation before, during, and after the underlying misconduct occurred," such as "the production of attorney notes, memoranda or reports (or portions thereof) containing counsel’s mental impressions and conclusions, legal determinations reached as a result of an internal investigation, or legal advice given to the corporation.").

In his letter, Filip discouraged any legislative action and requested a reasonable period to implement five key changes in department policy:

  • Cooperation will be measured by the extent to which a corporation discloses relevant facts and evidence, not its waiver of privileges.
  • Federal prosecutors will not demand the disclosure of "Category II" information as a condition for cooperation credit.
  • Federal prosecutors will not consider whether the corporation has advanced attorneys’ fees to its employees in evaluating cooperation.
  • Federal prosecutors will not consider whether the corporation has entered into a joint defense agreement in evaluating cooperation.
  • Federal prosecutors will not consider whether the corporation has retained or sanctioned employees in evaluating cooperation.

On the next day, Chairman Leahy welcomed the Department’s "serious analysis" and effort "to make substantive changes to its policy. " He noted his desire to study the suggestions and looked forward to the pending memorandum reflecting these changes. See Comment Of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On Deputy Attorney General Filip’s Letter Regarding The Corporate Attorney-Client Privilege (July 9, 2008).

Also on July 20, 2008, Senator Specter expressed concern about further delays and found some of the recommended changes were "unsatisfactorily vague." In posing questions of concern, he requested a copy of a "Filip Memorandum" as soon as possible so that further action would not be delayed. See Letter of Senator Arlen Specter to Deputy Attorney General Mark Filip (July 20, 2008).

It appears that the promise of a new DOJ Memorandum may have bought some more time before further legislative action is taken. The question remains whether legislation is inevitable on the issue of the assertion of the attorney client privilege on corporate cases.

Federal Rules of Evidence