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


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.”

Please see full article below for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Manatt, Phelps & Phillips, LLP | Attorney Advertising

Written by:


Manatt, Phelps & Phillips, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.