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Sept. 25 — A new Justice Department policy in which federal prosecutors must focus on individual accountability and that eliminates partial credit for corporate cooperation may have unintended consequences, attorneys said Sept. 25.
Speaking at a Nixon Peabody LLC webinar, Brian T. Kelly, a partner based at the law firm's Boston office, said that if the government pushes this policy, it could result in “more trials and fewer pleas.”
Kelly added that if corporations or individuals “conclude that they can't satisfy the new stricter standard, then they are going to have no choice but to fight it.”
The policy shift was formally announced in a Sept. 9 memo authored by Deputy Attorney General Sally Quillian Yates.
Kelly noted that the new policy will not just “magically create more evidence for the government.” Individual fraud cases are still going to be difficult to prove, he said. Individuals facing large sanctions and/or jail time may choose to go to trial rather than settle their cases, and the government—if it does bring more cases against individuals—could find itself bogged down on those actions, he said.
Echoing these concerns, David A. Vicinanzo, another Boston-based Nixon Peabody partner, said that the government may end up doing fewer corporate investigations rather than more because federal prosecutors are “bogging” themselves down with perhaps much more difficult investigations.
The attorneys also raised the concern that companies won't obtain cooperation credit unless they disclose “all relevant facts” about individuals who are responsible for misconduct.
“All relevant facts” can mean many things to different prosecutors, Kelly said. He added that prosecutors may use this phrase “very expansively” to either not give companies cooperation credit or to keep the pressure on them.
Vicinanzo said yet another concern is that the DOJ, by requiring disclosure of all relevant facts, could be forcing companies to disclose information protected under the work-product and attorney-client privileges.
In a Sept. 22 speech, Leslie Caldwell, the Assistant Attorney General who heads the DOJ's Criminal Division, said the new guidance doesn't change the government policy mandating that prosecutors do not request a waiver of attorney-client privilege and work product protection.
However, it is going to be “very difficult” to comply with this policy without waiving privileges, Vicinanzo said.
• Cultivating a company-wide culture of compliance from the top down;
• implementing robust compliance and ethics programs—and keeping them current;
• ensuring that internal reporting mechanisms are understood and followed; and
• consulting counsel if a need for an internal investigation arises.
To contact the reporter on this story: Michael Greene in Washington at email@example.com
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Caldwell's speech is available at http://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-delivers-remarks-second-annual-global-0.
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