Federal Prosecutors Asking for Privilege Waiver

An attorney writes an opinion piece critical of the Department of Justice's position on asking corporate defendants to waive privilege. N. Richard Janis, Taking the Stand: The McNulty Memorandum: Much Ado About Nothing, Washington Lawyer (DC Bar), Feb. 2007.

DOJ operated for several years under the "Principles of Federal Prosecution of Business Organizations" (Jan. 20, 2003), known as the "Thompson memorandum" after its author. Under the policy, federal prosecutors would encourage corporations and individual corporate defendants to waive their attorney-client privilege and work-product protection in order to be seen as cooperating with the investigation. Now there's a new memorandum in place, the McNulty Memorandum. Mr. Janis, who serves on the ABA's Presidential Task Force on the Attorney Client Privilege, thinks the new memorandum is about as bad as the last. (The views expressed are his and not the Task Force's.)