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"Authentic" cooperation, or else

Businesses under investigation are coming under strong federal pressure to waive the ordinary protections of attorney-client privilege in order to make it easier for the government to build its case, and also to cut loose employees and executives who face personal charges rather than furnish the costs of their legal defense:

In January 2003 then�deputy attorney general Larry Thompson promulgated "a revised set of principles to guide Department [of Justice] prosecutors as they make the decision whether to seek charges against a business organization." As Thompson made clear, "The main focus of the revisions is increased emphasis on and scrutiny of the authenticity of the corporation�s cooperation. Too often business organizations, while purporting to cooperate with the Department investigation, in fact take steps to impede the quick and effective exposure of the complete scope of wrongdoing under investigation."

Thus, companies that want to cooperate fully and not "impede" investigations must adhere to the "General Principle" articulated by Thompson: "In gauging the extent of the corporation's cooperation, the prosecutor may consider the corporation's willingness to identify the culprits within the corporation, including senior executives; to make witnesses available; to disclose the complete results of its internal investigation; and to waive attorney-client and work product protection."

Thompson further asserts, "Another factor to be weighed by the prosecutor is whether the corporation appears to be protecting its culpable employees and agents. Thus, while cases will differ depending on the circumstances, a corporation's promise of support to culpable employees and agents, either through the advancing of attorneys fees, through retaining the employees without sanction for their misconduct, or through providing information to the employees about the Government's investigation pursuant to a joint defense agreement, may be considered by the prosecutor in weighing the extent and value of a corporation's cooperation."

Whole thing here. For more, see Feb. 9. The Cato Institute will be holding a policy discussion on the issue Apr. 26 in Washington.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.