The U.S. Department of Justice (DOJ) on August 28, 2008, modified its policies for assessing whether companies have cooperated with government investigators. Existing policies had come under heavy criticism as improperly undermining the attorney-client privilege and inappropriately pressuring corporations not to provide legal counsel for their employees. The new policy, issued by Deputy Attorney General Mark Filip, provides that in assessing whether a corporation has cooperated
The DOJ will no longer consider whether a company has waived the attorney-client privilege or work product protection in assessing whether it has cooperated. Rather, the DOJ will evaluate the extent to which the company has disclosed relevant facts.
The DOJ will no longer consider whether a corporation has paid for its employees' legal representation.
The DOJ generally will not request non-factual information protected by a privilege, such as the nature of legal advice the company has received. In the August 28, 2008, press conference announcing the new policy, Deputy Attorney General Filip gave the example of a salesperson at a pharmaceutical company who asks the general counsel if marketing practices are lawful.
The DOJ will no longer consider whether a corporation has entered into a Joint Defense Agreement.
The new policy is a significant development affecting corporate compliance efforts and federal investigations, although it applies only to investigations and determinations made by the DOJ. Legislation is pending in Congress that would address these issues and would apply across the federal government. Click here to view the DOJ's press release.