Continuing the “Culture of Waiver” at DOJ

Andrew M. Grossman / September 19, 2008

Many have noted that the so-called “Filip Memorandum,” DOJ’s effort to forestall legislation limiting its ability to force companies to waive the attorney-client privilege, does not apply to prosecutions originated by federal agencies other than the Justice Department (e.g., here, here, and here), but few have recognized that the new Guidelines don’t apply to all of DOJ’s activities, either.

The broad issue is whether DOJ can take into account a company’s willingness to waive the privilege and work-product protections when deciding whether to indict the company. For many businesses, an indictment would be a death sentence (witness the implosion of Arthur Anderson), so they’re willing to do anything DOJ even hints might help to avoid that fate—even if that means turning over privileged materials and throwing employees under the bus in the process. (See, e.g., the Judge Kaplan’s thoughtful Stein II decision, affirmed by the Second Circuit the same day DOJ released its new Guidelines.)

As Heritage’s Brian Walsh has explained, the new guidelines (to be incorporated into the U.S. Attorneys’ Manual) are generally laudable but don’t go far enough or provide enough certainty. The biggest shortcoming is that the “culture of waiver” has spread well beyond DOJ to other departments and agencies, like the SEC and the EPA. The new guidelines seem to explicitly condone the use of coercive techniques outside of DOJ (§ 9-28.750).

That same section of the Guidelines, on “voluntary” disclosures, also alludes to the fact that the new protections do not apply to all of DOJ’s own cases. (more…)