LawyersUSA

The move was hailed by legal and business organizations as well as lawmakers. But many still want legislation passed barring all federal agencies from seeking privilege waivers in exchange for prosecution cooperation credits.

"The policy that was released by the Justice Department is probably about as good as anything we could have hoped for," said Susan Hackett, senior vice president and general counsel for the Association of Corporate Counsel.

"We are commending them for recognizing the need for change. But their policy is only one part of the problem here. Unless we get each one of the other federal agencies to individually reverse their policies too, legislation is still needed."

Deputy Attorney General Mark R. Filip announced the new policy, which governs how all corporate crimes are investigated, charged, and prosecuted by the DOJ, at a press conference last week.

Under the new guidelines, credit for cooperation will be based only on a corporation's disclosure of relevant facts and evidence, Filip said. The consideration of privilege waivers, the company's advancement of attorney fees to employees or participation in joint defense agreements will be prohibited.

Filip said the changes reflect "the long-standing tradition of refining the department's policy guidance in light of lessons learned from our prosecutions, as well as comments from others in the criminal justice system, the judiciary, and the broader legal community."

In July, Filip wrote to Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and committee ranking member Arlen Specter, R-Pa., informing them of the impending policy change, and urging them to hold off on legislation introduced in the Senate earlier this year by Specter.

The bill, the Attorney-Client Privilege Protection Act (S. 3217), would ban federal agencies from using a company's decision to waive the attorney-client privilege as a factor in determining whether to indict, bring more severe charges or offer a more favorable plea agreement. The measure also would bar prosecutors from making a corporation turn over its attorneys' litigation materials.

A companion House measure, H.R. 3013, passed in November.

The legislation was introduced in response to growing criticism of a policy put in place in 2006 by former Deputy Attorney General Paul McNulty. That policy allowed DOJ prosecutors to urge companies to waive attorney-client and work-product privileges in exchange for more favorable prosecution terms.

After the new "Filip Memo" was announced, Specter praised the policy, but said he would push forward with the bill.

"The revised guidelines are a step in the right direction, but they leave many problems unresolved so that legislation will still be necessary," Specter said in a statement issued the same day as the new policy.

He noted that "[l]egislation … would bind all federal agencies and could not be changed except by an Act of Congress."

That sentiment was echoed by American Bar Association President H. Thomas Wells, Jr., who called the attorney-client privilege and work-product privileges "bedrock legal rights [that] are sacrosanct and must not be dependent on the personal leanings of each new deputy attorney general."

But as this Congress winds down, the future of the bill, which sits in committee in the Senate, is uncertain. And a new White House administration will bring new personnel, and possibly new policies at the Justice Department, in January.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com