Federal Prosecutors Will Assess Corporate Cooperation Based on Disclosure of Facts, Not Waiver of Privilege.

?Culture of Waiver? has come to signify the government?s insistence on waiver of the attorney-client privilege as part of a corporation?s cooperation or at least the public perception that not offering to waive will be viewed negatively when the government evaluates whether a corporation has sufficiently cooperated to earn immunity or a deferred prosecution.

In reaction to understandable concern about this from impressive quarters including Congress, Judge Lewis Kaplan, and the criminal defense bar, the Department of Justice (DOJ) again revised its ?Principles of Federal Prosecution of Business Organizations? (formerly the ?Thompson Memo? and, thereafter, the ?McNulty Memo?) on August 28, 2008. As further discussed below, credit for corporate cooperation will depend on the disclosure of relevant facts, not waiver of the attorney-client and work product protections or a number of other previously considered factors. Nonetheless, Senator Arlen Specter has responded that a legislative fix is still necessary. In any event, the new DOJ corporate charging guidelines should help restore to the corporation the decision whether to waive the attorney-client privilege, so long as the corporation has properly preserved the privilege.

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