Risk Management

Senator Takes on DoJ’s Thompson Memo

Senator Arlen Specter says he will introduce legislation to stop the Justice Department from pressuring companies to waive attorney-client privileg...
Sarah JohnsonSeptember 14, 2006

Sen. Arlen Specter (R-Pa.) plans to introduce legislation that would prevent federal prosecutors from encouraging companies to cut off attorney fees or to waive their attorney-client privilege in corporate criminal cases, according to several sources.

Specter made this announcement during a continuing legal education conference for the National Association for Criminal Defense Lawyers and Georgetown University’s Law Center, according to one of the audience members, Jamie Conrad, assistant general counsel for the American Chemistry Council, a trade association for chemical companies. A similar account of Specter’s comment was also reported on the website of the legal newsletter The Corporate Crime Reporter.

A spokeswoman for the Senate Judiciary Committee did not respond immediately to requests by CFO.com to confirm Specter’s comment.

Specter apparently plans to introduce the legislation during the lame-duck session in November. It would likely die without action during this Congressional session, but could be revisited when the new Congress returns in January, Conrad says. According to Conrad, Specter said he does not believe that the Justice Department should take into account whether a company has shared the details of internal investigations if it violates an attorney-client privilege when deciding the outcome of a case.

For the past few years, prosecutors considering bringing criminal cases against companies have followed the provisions of the 2003 Thompson Memorandum, which says that companies accused of wrongdoing will receive more lenient treatment if they cooperate with the government. The memo puts pressure on companies to cut off legal support to employees accused of wrongdoing. The main topic of debate at a Senate Judiciary Committee hearing on Tuesday, the memo has also been criticized for pushing companies to reveal the results of internal investigations — potentially compromising the company’s right to client-attorney privilege.

At the Senate hearing Monday, witnesses ranging from corporate attorneys to U.S. Chamber of Commerce president Tom Donohue urged lawmakers to take action against the provisions of the Department of Justice’s so-called Thompson Memorandum. Less than two months ago, U.S. District Judge Lewis A. Kaplan rebuked the government for pressuring KPMG to cut off legal services to 16 employees, including a former CFO, accused of setting up tax shelters as part of their work for the firm. Kaplan said the government’s pressure on KPMG had violated the employees’ Fifth and Sixth amendment rights.