McNulty Memo Fails to Silence Calls for Specter Bill

When Deputy Attorney General Paul McNulty released the revised Department of Justice guidelines for federal prosecutors to use in determining whether or not to charge corporations criminally, it was the general perception that McNulty was responding to growing criticism of the Thompson Memo. (See my prior post on the topic, here.) It was also believed that McNulty was acting to avert legislation that had been introduced by Senator Arlen Specter. A December 16, 2006 New York Times article entitled “Judge’s Rebuke Prompts New Rules for Prosecutors” examining the events, processes and discussions that led to McNulty’s decision to release the revised guidelines may be found here (registration required).

However, while the changes embodied in the McNulty Memo (which may be found here) have generally been welcomed, there seems to be a consensus emerging in certain circles that the McNulty Memo did not go far enough and the Specter bill will still be needed.

For example, the American Bar Association President Karen J. Mathis issued a December 12, 2006 statement (here) saying that the McNulty Memo changes “do not go far enough…(and) fall far short of what is needed to prevent further erosion of fundamental attorney-client privilege, work product and employee protections during governmental investigations.” In particular, Mathis criticized the memo because “instead of eliminating the improper department practice of requiring companies to waive their privilege in return for cooperation credit,” the new policy “merely required high level department approval before waiver requests can be made.” Mathis also said that “the new policy does not fully protect employees’ legal rights in that it continues to allow prosecutors to force companies to take punitive actions against their employees in some cases in exchange for cooperation credit, long before any guilt is established.” Mathis ended her statement with a plea on behalf of the ABA for Congress to take up the Specter bill when it reconvenes in January.

William Ide, the Chair of the ABA Task Force on Attorney-Client Privilege, said (here) that there is a “fundamental difference” between the Task Force’s view that requiring a privilege waiver to avoid prosecution is never appropriate and the Justice Department’s view that it sometime is. “We are going to need legislation,” Ide said, unless the Justice Department goes one step further and recognizes that prosecutors are “not entitled to waiver, period, under any circumstances.”

The bill that Senator Specter introduced on December 7, 2006, the "Attorney-Client Privilege Protection Act of 2006," may be found here. The bill is supported by a broad coalition, including the Association of Corporate Counsel, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and the U.S. Chamber of Commerce. The bill prohibits the forced disclosure of information protected by the attorney-client privilege. The bill also prohibits the government from conditioning a civil or criminal charging decision on whether or not an organization is providing legal fees for its employees, or on whether or not the organization has terminated an employee because of the “decision by that employee to exercise the constitutional right or other legal protections of that employee.”

Senator Spector is the outgoing Republican Chair of the Senate Judiciary Committee. The incoming Chair, Democratic Senator Patrick Leahy, has not yet indicated whether he will push to get the Specter bill passed. Senator Leahy did issue a statement (here) in which he said that “I remain concerned that, depending on how the new policies are implemented, prosectors may still be able to inappropriately consider a corporation’s waiver of this important privilege.” He also said that “I will continue to monitor the implementation of this new policy and to hold the Administration accountable so that the right to counsel is preserved for all Americans.”

The White Collar Crime Prof blog has helpfully compiled (here) a list of links to a broad range of commentary on the McNulty Memo.

Special thanks for alert reader Jeremy Gilman for the links to the ABA sources.