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"Deputizing Company Counsel as Agents of the Federal Government"



In an update for the Cato Institute of a 2005 article (overview leads to PDF-format article), Washington attorney N. Richard Janis looks at the arsenal of methods, many relatively recent, by which federal prosecutors can arm-twist business defendants into submission. A portion of the executive summary:

...The combination of draconian sentences, lack of meaningful judicial control over the imposition of sanctions, and the impossible burdens on company officers have jeopardized the very nature of our adversary system of justice.

To avoid the potential catastrophe of a federal indictment, business firms are taking extraordinary steps to placate federal prosecutors. And those prosecutors now regularly insist on the following:

* That business firms surrender or "waive" their attorney-client privilege,
* That firms must pressure their employees to waive their constitutional right against self-incrimination,
* That firms facing indictment refuse to advance legal fees to employees under investigation -- even if a firm concludes that an employee was just following directions or is otherwise innocent of any wrongdoing, and
* That embattled firms must discharge certain employees at the direction of the government -- even if a firm concludes that an employee was just following directions or is otherwise innocent of any wrongdoing.

Any organization that balks at the government's demands risks months of negative publicity as prosecutors characterize a legal defense as "impeding" or "obstructing" the investigation. ...

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Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.