The Year in Review: #14. DOJ Backlash

For years bar organizations, business groups and civil liberties advocates criticized the DOJ's infamous Thompson Memo, which gave prosecutors free rein to demand waiver of attorney-client privilege when investigating suspected corporate wrongdoing and imposed harsh penalties on companies that didn't acquiesce to the demands of prosecutors.

Finally in December 2006, Larry Thompson's successor at the DOJ, Deputy Attorney General Paul McNulty, offered an olive branch. His new prosecutorial guidelines, dubbed the McNulty Memo, require prosecutors to obtain written approval before seeking privileged communications and forbid them from considering advancement of attorneys' fees to employees when making charging decisions.

But many perceived the salutary gesture as too little too late, and efforts to curb prosecutorial abuses marched forward in 2007. One of the movement's most dogged advocates is federal Judge Lewis Kaplan, who has used the high-profile tax fraud case against former KPMG partners to highlight--and dismantle--abusive DOJ tactics.

In July Kaplan dismissed the charges against 13 defendants, ruling that prosecutors violated their constitutional rights by pressuring KPMG to cut off legal fees. The case, which the DOJ once billed as the largest tax fraud prosecution in history, will go to trial in early 2008.

Other corporate defendants are already using Kaplan's opinions to combat the DOJ. Jailed former Dynegy exec Jamie Olis, for instance, is seeking to have his conviction overturned because prosecutors "sabotaged" his defense by keeping Dynegy from paying his legal fees.

And the pushback against the DOJ also has friends in other branches of the federal government. In January Sen. Arlen Specter introduced the Attorney-Client Privilege Protection Act of 2007 in Senate. The Act, which has received bipartisan support, would ban all government agents from conditioning deals or evaluating "cooperativeness" based on willingness to waive privilege.

Powerful forces in the legal community are rallying for the Act's passage. "[The McNulty Memo] will continue to cause a number of profoundly negative consequences," says ABA President Karen Mathis. "[The Act] would strike the proper balance between law enforcement and the preservation of essential attorney-client privilege, work product and employee legal protections."

Adele Nicholas

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