Is the McNulty Memorandum Fool’s Gold?

March 03, 2008 New Jersey Law Journal

This article is reprinted with permission from the MARCH 3, 2008 issue of the New Jersey Law Journal. ©2008 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.

After years of vicious attacks by waves of criminal defense lawyers and one courageous jurist, the United States Department of Justice released a memorandum authored by then Deputy Attorney General Paul J. McNulty purportedly revising its position on corporate charging guidelines in December 2006. “Principles of Federal Prosecution of Business Organizations” (Dec. 12, 2006 ), Now, over a year after its publication, a review and assessment on its impact on corporate charging decisions is appropriate.

The McNulty Memorandum is a “roadmap”— not a law — but a DOJ policy. That is, the McNulty Memorandum instructs federal prosecutors when those prosecutors consider charging business organizations with crimes, evaluating cooperation, recommending remedial measures and seeking the waiver of the attorney-client and work-product privileges from these entities. Although most of the ink spilled on the McNulty Memorandum by commentators discusses the waiver of the attorney-client and work-product privileges, critical portions of the McNulty Memorandum are seemingly ignored. This article addresses the principles relating to the federal prosecution of business organizations under the McNulty Memorandum.

Download Article (pdf file).