Sleeping With the Enemy: Can Corporate Counsel Be “Too Cooperative” With the Government?

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In 1999, then-United States Deputy Attorney General Eric Holder issued the “Holder Memorandum” – a document that has come to profoundly impact the way in which corporations conduct internal investigations and deal with the government in the face of misconduct allegations. The Holder Memorandum set forth specific factors to be considered in determining whether to file criminal charges against a corporation. Among them were “[t]he corporation’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of the corporate attorney-client and work-product privileges.”

Although the guidelines set forth in the Holder Memorandum have undergone several iterations, a corporation’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents remain factors to be considered by prosecutors in determining whether a corporation should be criminally charged. While the current guidelines provide that “[e]ligibility for cooperation credit is not predicated upon the waiver of attorney client privilege or work product protection,” they nevertheless provide that “the government's key measure of cooperation” is whether the corporation has timely disclosed “the relevant facts about the putative misconduct.”

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