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Mukasey: Attorney-Client Privilege to be Protected in Corporate Probes

Posted Jul 10, 2008 5:45 AM CDT
By Debra Cassens Weiss

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Attorney General Michael Mukasey told the Senate Judiciary Committee yesterday that the Justice Department will no longer require corporations to waive attorney-client privilege to show their cooperation with the government.

Mukasey said he will revise the so-called McNulty memo, written by Paul McNulty, a former deputy attorney general, Legal Times reports. The memo allowed prosecutors to prod companies to waive attorney-client privilege in corporate investigations as long as the attorney general first gives his approval.

Some of the proposed changes are outlined in a letter (PDF posted by the Wall Street Journal) sent to the committee by Deputy Attorney General Mark Filip, the Wall Street Journal reports (sub. req.). Besides barring pressure to waive the privilege, the changes would prohibit prosecutors from considering whether a company is paying the legal fees of its employees or participating in joint defense agreements with them.

The ABA had opposed the memo and supported legislation that would bar the Justice Department from pressuring companies to waive the privilege or to take unfair punitive actions against their employees as conditions for receiving cooperation credit. A bipartisan group of 32 former U.S. attorneys had also supported the bill.

Filip’s letter says he believes the proposed changes are preferable to legislation.

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