Waiver, Round Two

The McNulty Memorandum

By Juliana Morehead, J.D., CFE


Fraud and the Law 

Deputy attorneys general come and go and so do the memorandums. It's time for round two of the attorney-client and work product privilege waivers. In my Sept./Oct. 2006 column, I discussed the status of the waivers as they relate to a company's cooperation with authorities in a federal investigation. Based upon the time-honored and constitutionally entrenched importance of ensuring confidential relations between attorneys and their clients, I emphasized the significance of preserving the privileged documents of corporate executives, counsel, and employees even though the federal government could seek waiver of them during a federal investigation.

In that column, I reviewed the state of waiver during federal investigations, as well as the driving forces toward ensuring that federal prosecutors are able to conduct thorough criminal investigations of business entities. At the time of publication, and until Dec. 12, 2006, federal prosecutors were obliged to follow the guidelines set forth by former Deputy Attorney General Eric Holder, and as modified and expanded by subsequent Deputy Attorneys General Larry Thompson and Robert McCallum in determining whether to criminally charge a business entity.

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