[JURIST] Officials for the US Department of Justice (DOJ) [official website] announced Wednesday that they will revise the Principles of Federal Prosecution of Business Organizations [text, PDF] to no longer induce waivers of the attorney-client privilege and to limit what sensitive information investigators may gather. The announcement was part of a DOJ oversight hearing [materials] by the Senate Committee on the Judiciary and was included in a letter from Deputy Attorney General Mark Filip [official profile] to Sens. Patrick Leahy (D-Vt.) and Arlen Specter (R-Penn.), who have both opposed the current wide prosecutorial discretion in business organization cases. In response, Leahy wrote [press release]:
Filips letter appears to be an encouraging development. The proposed policy would ensure that the Department will evaluate corporate cooperation based on the information provided, rather than whether or not a corporation waived the privilege; limits the types of privileged information that may be requested; and makes clear that the Department cannot consider whether a corporation covered employee legal expenses or sanctioned its employees.The Washington Post has more.
In 2006, former US Deputy Attorney General Paul McNulty [official profile] announced that the DOJ would no longer encourage corporations to turn over confidential records [JURIST report] to officials investigating corporate fraud. The so-called McNulty Memorandum [text, PDF] revised portions of an older policy, which included the turning over of records as a indicator of a business's cooperation with prosecutors. In late 2007, the US House of Representatives passed [JURIST report] the Attorney-Client Privilege Act of 2007 [HR 3013 materials], which would bar prosecutors from demanding that a corporation waive its attorney-client privilege and from considering that waiver in deciding whether to prosecute.