Number: RL33842
Title: The McNulty Memorandum: Attorneys' Fees and Waiver of Corporate Attorney-Client and Work Product Protection
Authors: Charles Doyle, American Law Division 
Abstract: Corporations are subject to civil and criminal liability for misconduct, committed for their benefit, by their officers, employees and agents. Under most circumstances, they enjoy the right to attorney-client privileges and attorney work product protection in connection with government investigations of possible misconduct. The Justice Department's Thompson Memorandum in describing federal prosecution policies suggested that a corporation faced an increased risk of prosecution if it claimed those privileges or if it paid the business-related litigation costs of its officers and employees. The Thompson Memorandum, subsequently superseded by the McNulty Memorandum, sparked considerable debate before Congress and elsewhere. At least one federal court concluded that the manner of implementing the Thompson Memorandum policy ran contrary to the dictates of the Fifth and Sixth Amendments. Both Houses held hearings on the matter during the 109th Congress and the 110th Congress. The House Judiciary Committee has reported out the Attorney-Client Privilege Protection Act of 2007 (H.R. 3013), H.Rept. 110- 445 (2007), which the House passed under suspension of the rules on November 13, 2007, 153 Cong. Rec. H13564. Comparable legislation was introduced in the Senate (S. 186 and S. 3217). The 110th Congress concluded before further action could be taken, although a related amendment to the Federal Rules of Evidence did pass. This report is a discussion of the legislation as well as the controversy's legal background and chronology.
Pages: 31
Date: October 14, 2008