Continuing the “Culture of Waiver” at DOJ

Andrew M. Grossman /

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. The Department, it explains, “encourages corporations…to conduct internal investigations and to disclose the relevant facts to the appropriate authorities.” In certain cases, “prosecutors may consider a corporation’s timely and voluntary disclosure” for several purposes, leading to a decision on whether or not to prosecute. Such cooperation, the Guidelines note, does not guarantee non-prosecution, offering as an example that “the Antitrust Division has a policy of offering amnesty only to the first corporation to agree to cooperate.”

Not only is this first-in-the-door policy well known for its coerciveness—the Division plays competitors off one another and only the one that “wins” avoids prosecution—but it also gave rise to a rather infamous 2002 non-prosecution agreement with the global shipper Stolt-Nielsen. The policy is straightforward: In cases of alleged collusion, the Antitrust Division agrees not to prosecute the first company that approaches the Division and provides “full, continuing, and complete cooperation” in developing the case.

In Stolt-Nielsen’s case, “cooperation” included “producing…all documents and records, including personal documents and records…requested by attorneys and agents of the United States.” Of more recent first-in-the-door agreements, some have included similarly broad language, while others have explicitly recognized the continued applicability of privileges.

For what it’s worth (not much, it turns out), Division attorneys told Stolt-Nielsen that it would not be required to waive the attorney-client privilege. In the end, however, DOJ decided the company’s cooperation and compliance were insufficient and so prosecuted it. Late last year, a federal court dismissed the indictment, on the grounds that Stolt-Nielsen had fulfilled its obligations under the agreement—a major vindication after a harrowing experience for the company and its employees.

The new Guidelines do nothing to stop DOJ from coercing “voluntary” waiver of the attorney-client privilege, where “voluntary” means that a corporation can “volunteer” not to be indicted—indeed, they appear to approve of the practice in certain circumstances. That’s the same quid pro quo that the new Guidelines purports to prohibit.

This is just a part of the reason why the new guidelines, though an improvement, are no substitute for more comprehensive and durable congressional action. The Attorney-Client Privilege Protection Act (S. 3217), for example, bars prosecutors from making charging decisions or determining cooperation based on “the valid assertion of the protection of the attorney-client privilege or attorney work product doctrine.” Period.

And it does so whether the enforcement action commences at DOJ or at the SEC, HUD, the IRS, etc.—all of which have adopted policies like DOJ’s lead in coercing, or in some cases outright demanding, waiver.