Today, the US Department of Justice announced changes to its policies relating to prosecuting corporate fraud. The revisions were announced by Deputy Attorney General Mark R. Filip, and the revisions will likely come as a relief to the defense bar and inside counsel for corporations.
The changes basically relate to the manner in which credit for cooperation with the government will be assessed and rewarded by Justice. For years, Justice has given credit for cooperation to corporations. The amount of that credit, and whether the credit is given, has been often debated. Many people argued that prosecutors required corporations to waive their attorney-client privilege or attorney-work product protections and provide information to the government in exchange for receiving "cooperation" credit.
Now, under these new guidelines, credit for cooperation will not hinge on whether attorney-client privilege is waived. Instead, it will depend on disclosure of facts. And, prosecutors are now forbidden from asking for protection and privilege waivers in most instances. Justice will also no longer consider fees advanced for attorney's fees for employees and directors as evidence in evaluating whether the corporation was cooperating with the government. Likewise, prosecutors may not inquire about the existence of joint-defense agreements. Moreover, they cannot consider termination of employees as evidence of cooperation, but may review discipline of employees as evidence of the corporation taking remedial measures.
According to Justice's press release, the changes are effective immediately.