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With Much Applause: DOJ Revises Attorney-Client Privilege Guidelines

By broc

With Much Applause: DOJ Revises Attorney-Client Privilege Guidelines

Last Thursday, the DOJ released a new set of guidelines regarding how it would charge companies. The new guidelines are effective immediately and they revoke earlier - and heavily criticized - guidelines issued under then-Deputy Attorney General Larry Thompson, which were then subsequently revised by then-Deputy Attorney General Paul McNulty. Here is the DOJ press release - and remarks from Deputy Attorney General Mark Filip.

The new guidelines parallel the legislative proposals contained in the reborn "Attorney-Client Privilege Protection Act of 2008," which has passed in the House and pending in the Senate. So we ponder the big question: whether the new guidance sufficently protects the attorney-client privilege and work product protection, or whether congressional legislation is still desirable?

Apparently, the sponsor of the legislation thinks so. Sen. Arlen Specter issued a statement Thursday that says: “The revised guidelines are a step in the right direction but they leave many problems unresolved so that legislation will still be necessary. For example, there is no change in the benefit to corporations to waive the privilege by giving facts obtained by the corporate attorneys from the individuals in order to escape prosecution or to have a deferred prosecution agreement. The new guidelines expressly encourage corporations to comply with the waiver and disclosure programs of other agencies including the SEC and EPA. Legislation, of course, would bind all federal agencies and could not be changed except by an Act of Congress.”

Potential Ramifications for Tandy Language?

In his statement approving the DOJ's actions, ABA President Thomas Wells noted that the SEC was among the agencies with policies that pressure companies to waive their legal privileges. Others have expressed the same sentiment.

In talking to Dave, I think what they are talking about is the SEC's "cooperation" policies as articulated in the Seaboard case - but it does raise an interesting question about the Tandy language that companies are "required" to include in their comment letter responses. That language is asking the company to waive a potential defense basically in return for processing the filing - which isn't much different from making things easier on a defendant on the enforcement side for waiving attorney-client privilege. Might this spell the end of Tandy language in comment letter responses?

2nd Circuit's Decision: Advancement of Legal Fees Protected

By coincidence, the Second Circuit Court of Appeals rendered its decision in US v. Stein also on Thursday, upholding Judge Kaplan's dismissal of the indictments against thirteen defendants. The Court of Appeals upheld Judge Kaplan's ruling that the government deprived the defendants of their right to counsel under the Sixth Amendment by causing KPMG to place conditions on the advancement of legal fees to defendants-appellees, and to cap the fees and ultimately end them.

SEC Adopts Changes for Cross-Border Business Combinations, Exchange Offers and Rights Offerings

Last Wednesday, the SEC approved a host of changes to the exemptions for M&A transactions and rights offerings at an open Commission meeting; here are opening remarks from Tina Chalk of Corp Fin. On our "DealLawyers.com Blog," we posted a summary of these changes last week.

- Broc Romanek

Full post as published by The Corporate Counsel.net Blog on September 02, 2008 (boomark / email).