A Change of Heart for the DOJ: Policy Run Amok or Greater Respect for Ethical Norms?

Georgetown Journal of Legal Ethics, The, Summer 2007 by Brody, Katherine R, Tatarowicz, Chris

A. CRITICISM OF THE MCNULTY MEMO

One major source of discontent over the McNulty Memo is the concern that it is disingenuous.117 In the months following the Stein decision, McNulty vehemently defended the Thompson Memo and its policies, only to change his mind just one week after Senator Specter introduced potentially tiireatening legislation to Congress.118 The timing of this turnabout certainly suggests that McNulty was responding to political pressures rather than advocating a change in departmental ethos. Senator Specter himself seems unconvinced of the McNulty Memo's sincerity; he reintroduced the Attorney-Client Privilege Protection Act in 2007.119

Furthermore, some of the same groups that petitioned against the Thompson Memo now worry that the McNulty Memo does not go far enough in addressing their concerns. The major substantive criticism of the McNulty Memo is that, while it may impede waiver requests from federal prosecutors, it does not stop diem.120 Although prosecutors now need approval from higher-ranking officials before making waiver requests, the "improper department practice of requiring companies to waive their privileges" has not disappeared, and this practice still "threatens to further erode the ability of corporate leaders to seek and obtain the legal guidance they need to effectively comply with the law."121 Phrased differently, the McNulty Memo still assumes that under some circumstances a waiver request is appropriate and even necessary, whereas its critics argue that prosecutors "are not entitled to waiver . . . under any circumstances"122 and that "it's . . . not up to prosecutors to decide what the defendant's rights are."123

It is beyond the scope of tins Note to decide whether waiver requests are ever appropriate. Regardless, the McNulty Memo at the very least pays lip service to the notion that the attorney-client privilege is worth protecting, and in doing so it sets a higher ethical standard for federal prosecutors than the Thompson Memo. However, if the Justice Department is serious about protecting the attorney-client privilege and work product doctrine protections, then it must take several additional steps that extend beyond a revised internal memorandum.

B. WHAT ELSE CAN THE DOJ DO?

If the McNulty Memo is a genuine attempt by the DOJ to protect the core values at stake under the Thompson Memo and halt its controversial policy on corporate cooperation, then it must address at least three interrelated issues.

First, in order to effectuate a policy that promotes ethical prosecutorial conduct, the DOJ needs to change its "win at all costs" attitude towards prosecuting corporations, especially when the "cost" of winning is the violation of ethical rules and constitutional rights.124 The Model Rules describe the special role of a prosecutor as having "the responsibility of a minister of justice and not simply that of an advocate."125 But the DOJ has failed to fully embrace this duty. Instead, the DOJ has claimed exemption from certain ethical rules, often in opposition to the federal courts, and has issued guidelines that have eroded the attorney-client relationship and defendants' constitutional rights in the name of law enforcement.126 In order for prosecutors to fulfill their duties and uphold the laws of the United States, it is imperative that the DOJ seek to end the pervasive notion that federal prosecutors are not bound to the highest standards of ethical and legal conduct when investigating and prosecuting corporate entities.