DOJ Cooperation Standards Revised: Attorney–Client Privilege Remains at Risk

Cooperating Without Capitulating in Government Investigations

Filip Issues Revisions in Response to Congressional Pressure

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, December 23, 2008

Program Materials

Description

The Department of Justice recently revised its corporate charging and cooperation guidelines for prosecutors to use in corporate investigations, as outlined by U.S. Deputy Attorney General Mark Filip. Filip recommended the changes in response to a growing threat that Congress would step in.

The ABA Task Force on Attorney–Client Privilege announced that the changes are not sufficient to protect the privilege. Corporate investigations and prosecutions remain a high priority for the DOJ, and heightened scrutiny is expected to continue due to the economic crisis and recent scandals.

As a result, cooperating with the government remains a quandary for companies. To gain favorable government treatment, companies may still need to make extensive disclosures that could compromise the privilege in order to demonstrate their willingness to cooperate.

Listen from your telephone as our authoritative panel examines the DOJ revisions and handling of investigations under the new standards. The panel will offer its insights into best practices for corporations to protect privileged information, while cooperating with government investigations.

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Outline

  1. Background/Overview
    1. Principles of federal prosecution of corporations
    2. How did we get here?
    3. Factors considered in charging corporations
  2. Outlined changes to the McNulty memo
    1. What does it do?
    2. What does it not do?
  3. Impact of the change in DOJ policy
    1. On defense of government enforcement actions
    2. On internal investigations
    3. On negotiations with the DOJ and other regulators
  4. Best practices
    1. Dealing with the indemnification and advancement of attorneys’ fees post-McNulty memo
    2. Evaluating waiver requests
    3. Understanding the facts

Benefits

The panel reviewed these and other key questions: 

  • What are the current overarching principles guiding federal prosecutors during investigations of corporations and corporate officers?
  • How will the changes in DOJ policy impact corporate internal investigations and defense of government enforcement actions?
  • What are the best practices for corporations involved in government investigations that are subject to the revised cooperation and charging guidelines?

Faculty

Stuart M. Altman
Stuart M. Altman
Partner
Hogan & Hartson

He focuses on white collar criminal investigations and defense, including representing clients in securities...  |  Read More

William M. Sullivan, Jr.
William M. Sullivan, Jr.
Partner
Winston & Strawn

He concentrates in corporate internal investigations, trial practice, and white-collar criminal defense, as well as...  |  Read More

Kevin M. King
Kevin M. King
Partner
Winston & Strawn

He concentrates his practice in corporate internal investigations and white-collar criminal defense matters. He...  |  Read More

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