Thompson Redux: The McNulty Memorandum
By: JOHN W. LUNDQUIST
January 2005
Less than one year ago, we wrote about an interesting development concerning the Department of Justice’s “Thompson Memorandum,” portions of which had been found unconstitutional by a federal court in New York. In the face of mounting pressure from diverse corners (not least, the Senate Judiciary Committee), the Department of Justice (DOJ) announced in December that it was overhauling the Thompson Memorandum. The revised document--which quickly became known as the “McNulty Memorandum” after its author, Deputy Attorney General Paul J. McNulty--was presented as the solution.
Criticism of the DOJ’s policies, however, has hardly diminished in response. In January, Senator Arlen Specter (R. PA) introduced the “Attorney Client Privilege Protection Act of 2007,” which would bar federal prosecutors from requesting waivers of privilege or promising lenient treatment on the condition that privilege be waived. The House responded in March by holding a hearing considering sanctions on prosecutors who attempt to coerce waivers of privilege.
Why Does This Bipartisan Firestorm Continue?
It may be because the McNulty Memorandum does hardly anything to change the “culture of waiver” that the DOJ has imposed in the years following Sarbanes-Oxley and Enron.
What the McNulty Memorandum does is parse privileged information into two categories. Category One covers “factual” information, including interview memoranda, chronologies, key documents, and similar attorney work-product material. Category Two includes confidential attorney-client communications, attorney notes and reports, mental impressions, and opinions. Under the McNulty regime, prosecutors may request Category One information simply by getting permission from the local U.S. Attorney, who is supposed to “consult with” the DOJ before approving the request. The request is to be made only if there is a “legitimate need” for the materials. Category Two information, in contrast, is to be requested only following approval from the Deputy Attorney General.
The McNulty Memorandum states that refusal to waive privilege for Category One information will continue to be a factor in determining whether a company has truly cooperated in an investigation, thus perpetuating the very problem created by the Thompson Memorandum. Prosecutors are not to draw any negative inference from a refusal to comply with a request for Category Two information, however.
At a hearing held by the House Judiciary Committee on March 8, 2007, knowledgeable witnesses testified that, while in theory there is an improvement, in practice there is no change following McNulty. The pressure to waive privilege continues in spite of the new policy: The government may continue to punish companies for opposing requests for Category One information, and reward companies that comply with requests for Category Two information (rather than punishing those who refuse on grounds of privilege). The primary difference between Thompson and McNulty is that between the carrot and the stick.
The last chapter on the issue of privilege waiver has not been written. What is positive, however, is that the attorney-client privilege has been recognized as the important bedrock of our system of justice that it is.