2007 Issue 1 - New York City Bar Association

L A W Y E R ’ S R O L E I N C O R P O R A T E G O V E R N A N C E
the pressure that corporations have felt to waive privilege in connection
with government investigations. At the same time, the Thompson Memo—
including its discussion of waiver of privilege—remains in force as the
Justice Department’s statement of policy on charging corporations. Accordingly,
unless parallel changes are made to the Thompson Memo, corporations
will likely continue to be asked to waive the attorney-client privilege
in order to minimize the risk of criminal prosecution.
3. Recent DOJ Statements
Recent statements by Justice Department officials reinforce this expectation
of full and extensive cooperation. In a February 2005 speech,
Christopher Wray, then the Assistant Deputy Attorney General for the
Criminal Division, underscored that cooperation is both expected and
must be “true” and “authentic”:
Our message on this point is two-fold: Number one, you’ll get a
lot of credit if you cooperate, and that credit can make the
difference between life and death for a corporation. Number
two, you’ll only get credit for cooperation if it’s authentic. You
have to get all the way on board and do your best to help the
Government. 26
He explained that the bar has been raised both by the DOJ’s increasing
expectations and by companies that have successfully navigated and
survived government investigations with “A+” cooperative efforts. 27 Wray
volunteered that a company that promptly discloses problems will receive
credit, but a company that at first tries to “lay low” is less likely to receive
a break from the government. 28 David Kelley, then the U.S. Attorney for
the Southern District of New York, in fact implied that companies that
impede governmental investigations will be punished: “Those who do
not respond fully and truthfully, or who willfully turn a blind eye to
protect a business relationship, will face the risk of criminal prosecution
and conviction.” 29
26. Wray, ABA Remarks, n.182 in Report above (emphasis in original).
27. Id.
28. Id.; see also George J. Terwilliger III, Responding to Investigations, Nat’l L.J., Aug. 15,
2005, at 13 (“Failure to cooperate can harden prosecutors’ attitudes significantly and render
a bad situation even worse.”).
29. U.S. Attorney’s Office, S.D.N.Y., Press Release, Nine Individuals Charged for Submitting
False Audit Confirmation Letters to Ahold Subsidiary U.S. Foodservice (Jan. 13, 2005), available
at http://www.usdoj.gov/usao/nys/pressreleases/January05/aholdvendorpressrelease.pdf.
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