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09/21/2009 03:16:12 PM EST

The Filip Memorandum: Is It Really Better Than Its Ancestors?

Posted by

Ernest Badway & Marc Singer

 
On August 28, 2008, then Deputy Attorney General Mark Filip issued, on behalf of the United States Department of Justice (''DOJ''), a memorandum purportedly revising the DOJs Principles of Federal Prosecution of Business Organizations ("Filip Memorandum''). This article addresses the issuance of the Filip Memorandum, where it came from and how it may affect the future.

The authors write: For the first time, the DOJ incorporated these guidelines into its United States Attorneys' Manual (USAM), a set of guidelines binding upon all DOJ prosecutors. As such, the Filip Memorandum relates to federal criminal prosecutions of business organizations, decisions evaluating cooperation and privilege issues. This article addresses the issuance of the Filip Memorandum, where it came from and how it may affect the future.

To no one's surprise, the DOJ has adopted a very aggressive approach towards corporate crime, but is not alone among government regulators in this fight as well as in the privilege waiver debate. For example, the United States Securities and Exchange Commission (SEC) has relied upon its Seaboard guidelines, and others have promulgated standards to consider cooperation when making their charging decisions. Additionally, the DOJ previously issued, among others, the Thompson and Holder Memorandums, all seeking to outline standards for federal prosecutors when making these charging decisions. Despite all of this effort and the innocuous language used in describing these policies, these regulators effectively required business entities under investigation to disclose privileged and confidential information to obtain lenient treatment.

Some chose to challenge these policies. In particular, the Thompson Memorandum was challenged in United States v. Stein, before United States District Judge Lewis A. Kaplan. Judge Kaplan questioned the constitutionality of the Thompson Memorandum, and found that federal prosecutors had violated the Fifth and Sixth Amendment Constitutional rights of the defendants with their practice of causing a corporation to stop paying the legal fees of those under investigation or prosecution. [footnotes omitted]
 
 
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