Back in the Dark Ages when I served two stints as head of the DOJ’s Antitrust Division, young prosecutors often would complain that in-house lawyers were impeding, if not obstructing, their investigations. Their concerns centered around issues such as the formation of joint defense groups, company counsel representing employees who were not targets, payment of legal fees for executives under investigation and, of course, the assertion of legal privileges. Ordinarily, I would offer the prosecutors fatherly consolation and explain that the lawyers were “mounting a defense,” as it used to be called.
But the corporate scandals of 2000 and beyond ushered in a brave new world. With the enactment of SOX, the publication of the now-infamous Thompson Memorandum and a major attitudinal change by law enforcement personnel at all levels of government, the concept of mounting a defense has become all but extinct.
