DOJ alters controversial ‘McNulty Memo’

A top Justice Department official told lawmakers earlier this month the controversial “McNulty Memo” would soon be a thing of the past.
The memo – which authorizes federal prosecutors to offer favorable terms to corporate criminal defendants in exchange for the waiver of their attorney-client privilege – has been harshly criticized by the in-house legal community.
In a July 9 letter to two top-ranking senators, Deputy Attorney General Mark Filip said the memo would be replaced by a policy that would encourage companies to voluntarily turn over facts and evidence, rather than push for the waiver of attorney-client privileges.
“We all very much share an appreciation for the foundational role the attorney-client privilege plays in our legal system, including our system of criminal justice,” Filip wrote in the letter to Sens. Patrick Leahy, D-Vt., and Arlen Specter, R-Pa.
The new policy, Filip wrote, would bar prosecutors from using certain factors, including whether a corporation is paying attorney fees, in assessing its level of cooperation.
In the letter, Filip said the policy change was meant to stave off legislation aimed at banning the practice of encouraging corporate defendants to waive the privilege.
In November 2007, the House passed the “Attorney-Client Privilege Protection Act of 2007,” H.R. 3013, which would ban federal prosecutors from using a company’s decision to waive the privilege as a factor in determining whether to indict, deciding the severity of charges or helping foster a more favorable plea agreement. The measure also would bar prosecutors from making a corporation submit its attorneys’ litigation materials.
A similar bill, S. 186, sponsored by Specter, the ranking Senate Judiciary Committee member, was also introduced in the Senate last year. In a letter sent to Filip July 10, Specter said the bill would not be scuttled until he received proof that changes are made at the DOJ.
“In the context of these lengthy delays and the potential prejudice which is involved in these matters, I think it is too much to ask for the legislative process to await a written revision of McNulty and then await a review of the implementation of a new memorandum for a ‘reasonable amount of time,’ which could be very long,” Specter wrote.
Specter sent the response the same day Attorney General Michael Mukasey testified before Specter and other committee members that a waiver of the attorney-client privilege will no longer be used as a bargaining chip by the Justice Department.
“We will no longer measure cooperation by waiver of the attorney-client privilege,” Mukasey said.
He previously told lawmakers in February, shortly after taking office, that the McNulty memo would be replaced.