The Thompson Memorandum In Short: Attorneys’ Fees and Waiver of Corporate Attorney-Client and Work Product Protection Page: 2 of 6
This report is part of the collection entitled: Congressional Research Service Reports and was provided to UNT Digital Library by the UNT Libraries Government Documents Department.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
CRS-2
the privilege may survive disclosure for limited selective purposes (selective waiver) to
government investigators or regulators.
At least since the Supreme Court announced its decision in Hickman v. Taylor, the
federal courts have recognized that an attorney's work product gathered or created in
anticipation of litigation enjoys qualified disclosure protection. The protection can be
waived, but here too the circuits are divided on the question of whether it can survive a
selective waiver in the form of disclosure to a government investigator or regulator.
Deputy Attorney General Memoranda and Related Matters. Four Deputy
Attorneys General have issued memoranda to guide the exercise of prosecutorial
discretion on the question of whether criminal charges should be brought against a
corporation. Each includes provisions concerning the waiver of attorney-client and
attorney work product protection and all but one address employee legal costs and joint
defense agreements as well.
Signed on June 19, 1999, the Holder Memorandum was designed to provide
prosecutors with factors to be considered when determining whether to charge a
corporation with criminal activity. It emphasized that "[t]hese factors are, however, not
outcome-determinative and are only guidelines." The factors consisted of: "1. The nature
and seriousness of the offense ... 2. The pervasiveness of wrongdoing within the
corporation ... 3. The corporation's history of similar conduct ... 4. The corporation's
timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the
investigation of its agents ... 5. The existence and adequacy of the corporation's
compliance program ... 6. The corporation's remedial actions ... 7. Collateral
consequences ... and 8. The adequacy of non-criminal remedies ... ." In the section
devoted to cooperation and voluntary disclosure, the Memorandum stated that "In
gauging the extent of the corporation's cooperation, the prosecutor may consider the
corporation's willingness ... to waive the attorney-client and work product privileges."
The Memorandum also addressed the adverse weight that might be given a corporation's
participation in a joint defense agreement with its officers or employees and its agreement
to pay their legal fees. Although several academics and defense counsel expressed
concern over the possible impact of the waiver feature of the Holder Memorandum, a
survey of United States Attorneys conducted in late 2002 indicated that waivers were
rarely requested.
On January 30, 2003, the Holder Memorandum was superseded by the Thompson
Memorandum. The Thompson Memorandum was essentially a reissuance of its
predecessor. Little of the text was new. That portion of the Memoranda devoted to the
waiver of attorney-client and work product protections, and cooperation and voluntary
disclosure in general - Part VI - was the same in both except for a new paragraph
added in the Thompson Memorandum. The addition said nothing about waivers per se,
but made clear the risks that a corporation ran if it failed to be forthcoming early on or
continued to support those officers or employees that prosecutors thought culpable. Yet
this is one of the few amendments to the Holder Memorandum. To some, the wholescale
adoption of language from the earlier Memorandum suggested a Justice Department
perception that the problem with the Holder Memorandum was not its content but its
application.
Upcoming Pages
Here’s what’s next.
Search Inside
This report can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Report.
The Thompson Memorandum In Short: Attorneys’ Fees and Waiver of Corporate Attorney-Client and Work Product Protection, report, January 30, 2007; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc808260/m1/2/: accessed April 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.