Ongoing concerns over the Department of Justice 2006 “McNulty Memo” policy allowing DOJ to seek waivers of the attorney-client privilege in environmental crimes prosecutions have led to some recent changes. Members of Congress have acknowledged the concerns and have initiated legislation that could ban the practice. Sen. Arlen Specter, R-Pa has legislation pending (S.186) that would prohibit any U.S. Attorney or agent from demanding or requesting the disclosure of any communication protected by the attorney-client privilege, and would also prohibit the basing of civil or criminal prosecution decisions on a waiver of the privilege. But Sen. Patrick Leahy, D-Vt, intervened to encourage the Senate to negotiate with the DOJ and come to a cooperative resolution on the subject rather than enact legislation. The outcome on this intervention is a July 9, 2008 Memorandum from current Deputy Attorney General, Mark Filip, addressing the foundational role that the attorney-client privilege plays in the legal system and outlining changes the Department plans to pursue in revising the McNulty guidelines.

The memo lists these changes as: 1) cooperation will be measured by the extent to which a corporation discloses relevant facts and evidence, not its waiver of privileges; 2) federal prosecutors will not demand the disclosure of “Category II” information (non factual attorney work product and core attorney-client privileged communication) as a condition for cooperation credit; 3) federal prosecutors will not consider whether the corporation has advanced attorneys’ fees to its employees in evaluating cooperation; 4) federal prosecutors will not consider whether the corporation has entered into a joint defense agreement in evaluating cooperation; and 5) federal prosecutors will not consider whether the corporation has retained or sanctioned employees in evaluating cooperation.

Two days after Mark Filip’s memo was released, Sen. Spector responded in writing, stating “I am concerned about delays in enacting legislation while the Department of Justice is continuing to act under the McNulty Memorandum . . . I think it is too much to ask for the legislative process to await a written revision of McNulty and then await a review of the implementation of a new memorandum for a ‘reasonable amount of time’ which could be very long.” Further, Sen. Spector also requested information on the specific cases that are pending under Thompson/McNulty, including the costs incurred by companies and individuals. Mark Filip has not yet publicly responded to Sen. Spector’s letter. However, more is expected on this controversial subject as the DOJ tries to balance its need for cooperation in prosecution with the foundational role of the attorney-client privilege.