DAG Mark Filip's McNulty memo to SJC.

From Law professors:

The latest scenario involves the attorney-client privilege and the famed McNulty Memo, which in prior lives resembled the Holder Memo, then the Thompson Memo, followed by the McCullum revisions. The latest is that Deputy Attorney General Mark Filip sent a letter to Senators Leahy and Specter outlining changes that will be made by DOJ.

The letter states that in the last 18 months DOJ has not approved any attorney-client privilege waivers in the corporate arena. If that's the case, then why not just change the law so the problems of the past never happen again?

The letter provides that cooperation will be measured by facts and evidence and not by waivers. But who will provide the oversight to make sure that this actually happens in the U.S. Attorney offices across the country?

And why doesn't the letter speak to Category I waivers? Will there be no changes here?

And after listing some suggested changes, changes that could probably result in a new Memo, the Filip Memo, the Deputy Attorney General states that "I have come to the conclusion that the above changes to the Principles are preferable to any legislation, however well intentioned and diligently drafted, that would seek to address the same core set of issues."

Letter From Deputy Attorney General Mark Filip -
Download leahy_specter_principles_letter_0.pdf

Interesting the letter speaks on Catagory I waiver. Yet, he makes no changes to that. Here is McNulty's memo on Catagory I waiver:

Category I information consists of factual information relating to the alleged misconduct and consists of materials including witness statements, factual interview memoranda, and factual materials (for example chronologies and organization charts) prepared by or at the request of counsel. Prosecutors are instructed to first request purely factual information, which may or may not be privileged, relating to the underlying misconduct.

Me thinks Filip revised Catagory II. Here is McNulty's memo of Catagory II:

The McNulty Memorandum explicitly states that Category II information includes "legal advice given to the corporation before, during, and after the underlying misconduct occurred" as well as "attorney notes, memoranda or reports . . . containing counsel's mental impressions and conclusions, legal determinations reached as a result of an internal investigation, or legal advice"

I suspect Filip tweaked some of verbiage in Catagory II when there are three major corporate fraud scandals. Here are some examples:

Former President of First Bank Mortgage Indicted on Multiple Fraud Charges Causing a Loss of $35 Million

Bear Stearns execs indicted

And finally, State Attorney Generals in three states, Florida, Illinois, and California are suing Countrywide for corporate fraud.