Former DAG Paul McNulty's memorandum.

I posted yesterday on AG Mukasey's bombshell at the Senate Judiciary Committee yesterday about tweaking the former Deputy Attorney General Paul McNulty's memo on attorney-client privilege in corporate investigations. Here is McNulty's memo:

Waiver Of Attorney-Client Privilege And Attorney Work Product Protections

Under the McNulty Memorandum, the Department's practice of requesting and evaluating corporate waivers of attorney-client privilege and attorney work product will continue. Rather than eliminating waiver requests, the McNulty Memorandum provides a multi-tiered procedure for requesting business entities to disclose protected materials. Pursuant to this new approach, requests for protected materials will only be made where there is a "legitimate need" for privileged information, to be determined by: (i) the likelihood and degree to which the privileged information will benefit the government's investigation; (ii) whether the information can be obtained in a timely and complete fashion by using alternative means that do not require waiver; (iii) the completeness of a voluntary disclosure already provided; and (iv) the collateral consequences to a corporation resulting from a waiver.

If prosecutors determine that such a legitimate need exists, they are instructed to seek information through the least intrusive manner possible. For these purposes, privileged materials and attorney work product are divided into two categories.

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. Before requesting waiver of attorney-client or work product protections for Category I information, prosecutors must obtain written authorization from the United States Attorney who, prior to authorizing the request, must provide a copy of the request to, and consult with, the Assistant Attorney General for the Criminal Division. If authorized, the United States Attorney must communicate the request in writing to the corporation. A corporation's response to the government's request for waiver of privilege and work product protection for Category I information may be considered in evaluating its cooperation and in making charging determinations.
In the "rare circumstances" where Category I information is viewed by prosecutors as providing an incomplete basis to conduct a thorough investigation, they are authorized to seek access to Category II information, which is defined under the McNulty Memorandum as attorney-client communications and opinion attorney work product. 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" Requests for Category II information must be authorized in writing by the Deputy Attorney General and communicated in writing to the corporation by the U.S. Attorney. Unlike cases involving Category I information, however, prosecutors are instructed not to consider a business entity's refusal to provide Category II information in charging decisions.

On Tuesday, December 12, 2006, Deputy Attorney General Paul McNulty released revised Department of Justice guidelines regarding federal prosecution of business organizations. The revised policies, which are embodied in an internal Department of Justice memorandum (the "McNulty Memorandum"), supercede and replace earlier guidelines issued in 2003 by then-Deputy Attorney General Larry Thompson (the "Thompson Memorandum").
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Click here to read Opening Statement of McNulty Senate Judiciary Committee "The Thompson Memorandum's Effect on the Right to Counsel in Corporate Investigations"