Corporate Cooperation During Investigations and Audits

This Article examines a series of memoranda adopted by the United States Department of Justice during the period 1999 to 2007 that addressed cooperation by corporations under investigation. The Article focuses on waivers of the attorney-client privilege and attorney work product doctrine that the four memoranda encourage as part of the process of cooperation. The memoranda are the 1999 Holder Memorandum, the 2003 Thompson Memorandum, the 2005 McCallum Memorandum, and the 2006 McNulty Memorandum. The Article also examines other organizational sources of pressure to cooperate during investigations and audits, including the Securities and Exchange Commission, the Public Company Accounting Oversight Board, and external auditors. The Article also analyzes the doctrine of selective waiver of attorney-client privilege and the attorney work product doctrine, and waivers of Fifth Amendment rights during investigations. Other aspects of cooperation during investigations are analyzed, including indemnification and advances of attorneys’ fees to employees, joint defense agreements, and deferred prosecution agreements. The Article concludes by recommending codification of a prohibition on federal prosecutors requesting disclosure of privileged information and using assertion of the attorney-client privilege to determine a corporation’s level of cooperation