New York Law Journal: McNulty Memo: Changes Game or Keeps Congress Out?

Articles / January 3, 2007

New York partner John Carney and associate Dennis Cohen authored an article for the January 3 edition of the New York Law Journal titled, "McNulty Memo: Changes Game or Keeps Congress Out?"

The article focuses on recent changes to the guidelines used by federal prosecutors in corporate criminal cases, who will have to meet higher requirements before they can request waivers of attorney-client privilege and documents from corporations in criminal probes.

The revisions, put forth in the McNulty Memorandum, modify the Justice Department’s 2003 Thompson Memorandum, which advised prosecutors and companies on federal investigations. It stressed that prosecutors, when considering whether to bring charges, should take into account a company’s level of cooperation with government investigators.

Carney and Cohen detail the history of the Thompson Memorandum, the backlash against it, the recent related Congressional action taken in a proposed bill, and explain the changes set forth in the McNulty Memorandum.

The authors conclude: "On balance, the McNulty Memorandum represents an important departure from the Thompson Memorandum. While critics may view the McNulty Memorandum as still encouraging the culture of waiver, prosecutors now must request and receive approval before asking corporations to waive their rights. Regardless of whether the rules are ironclad prohibitions or merely a collection of speed bumps for prosecutors, the new procedures will clearly have an effect on the way prosecutors think about corporate cooperation.

"The greater debate, however, is on whether the new guidelines and procedures go far enough to address the concerns of Senator Specter such that congressional action would be unnecessary. If not, we may see more saber-rattling from Capitol Hill, less predictability from prosecutors, and yet possibly another memorandum from the next deputy attorney general."