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Richard Cooper is a partner at Williams & Connolly in Washington. He can be reached by e-mail at The revised principles of Federal Prosecution of Business Organizations issued last January by Deputy Attorney General Larry D. Thompson have generated considerable discussion about their encouragement of federal prosecutors to pressure corporations to waive the attorney-client privilege as part of the price for an acceptable plea agreement. That encouragement warrants critical analysis. So, too, does the principles’ thinly veiled attack on legal representation of individuals involved in criminal investigations and on the presumption of innocence. Protection of employees and agents is a ‘factor’ The principles state that a “factor to be weighed by the prosecutor [in determining whether to charge a corporation] is whether the corporation appears to be protecting its culpable employees and agents.” Further, “a corporation’s promise of support to culpable employees and agents, either through the advancing of attorneys [sic] fees, through retaining the employees without sanction for their misconduct, or through providing information to the employees about the government’s investigation pursuant to a joint defense agreement, may be considered by the prosecutor in weighing the extent and value of a corporation’s cooperation.” Presumably, the Department of Justice (DOJ) would identify, and have corporations identify, individuals as “culpable” before trial and, indeed, before indictment. In the DOJ’s view, such individuals should be denied the advancing of fees for counsel, continued employment without discipline and any information from the corporation about the course of the investigation. Every one of these provisions is deeply troubling. Prosecutorial pressure against a private party to take punitive action against another private party during an investigation on the basis of the prosecutor’s unilateral determination of criminal “culpability” is improper and fundamentally unfair. The time for an individual to respond to a prosecutorial accusation of culpability is after a formal charge has been made by indictment or information. In our legal system, culpability is to be determined by an impartial jury in a trial presided over by an impartial judge and conducted in a public courtroom with opportunity for confrontation, cross-examination and the presentation of contrary evidence obtained by subpoena or otherwise. “Culpable” is not a label to be applied with punitive consequences by zealous prosecutors acting without effective judicial supervision on the basis of secret evidence, without opportunity for confrontation, cross-examination or compulsory process. The first punitive sanction DOJ seeks is denial of advancement of legal fees. Is it DOJ’s preference that individuals it has labeled “culpable” have no counsel at all? Who needs counsel more than they? Few individuals can afford the legal representation that is warranted in a federal criminal investigation of business conduct. Is it DOJ’s preference that individuals it has labeled “culpable” drain their families’ available funds so that, by the time of trial, they cannot present an adequate defense, except, perhaps, with the aid of a public defender? Is it part of DOJ’s strategy to threaten financial ruin from prosecutorial denunciation as “culpable” prior to any trial and conviction in order to pressure individuals to cooperate with prosecutors? Where is the harm to legitimate prosecutorial interests from a corporation’s advancement of legal fees for its employees involved in a criminal investigation in connection with their employment? In general, counsel for individuals, including individuals whom prosecutors view as “culpable,” reduce the risk of obstruction, and do not create improper roadblocks to an investigation. When the representation of individuals is properly organized, each client has a lawyer who properly serves his or her interests, and not those of someone else; and each individual, in consultation with counsel, can make a free and independent decision whether to testify, to seek immunity or to seek a plea agreement. Yes, criminal defense lawyers commonly counsel their clients to invoke their Fifth Amendment privilege; but prosecutors have no legitimate basis for objecting to proper assertions of a constitutional privilege. It is an abuse of power for prosecutors to seek to deny individuals access to the most effective means for exercising the privilege. And it is an abuse to condition a corporation’s eligibility for an acceptable plea agreement on its depriving its employees of that most effective means. The second punitive sanction is denial of continued employment without denunciation and discipline for misconduct. Does DOJ prefer that corporations discharge or otherwise discipline employees with no process-e.g., no formal charges, no access to relevant documents, no opportunity to confront and cross-examine adverse witnesses? Is that how we treat people in this country? Is that what our employment laws should permit? If, however, there is to be a fair disciplinary process, will the prosecutors not object to the “culpable” individuals’ discovery from the corporation of incriminating evidence and to their confrontation and perhaps even cross-examination of incriminating witnesses? Is a mini-trial conducted without the basic elements of due process a desirable prelude to the anticipated criminal trial? Such a mini-trial is likely to be wholly inadequate. The accusers will almost surely not have access to the full range of evidence available to the government, and the defendants will almost surely decline to present a full defense in advance of a criminal trial. Thus, where there is doubt about culpability, corporations justifiably are reluctant to conduct an inadequate disciplinary proceeding and to declare that an employee has committed a federal crime for which prosecution is likely. In clear cases of significant wrongdoing, corporations, especially public corporations, frequently do take disciplinary action, including discharge. Often, however, culpability turns on unclear and contestable mental elements. In such circumstances, corporations commonly resolve the matter through paid leaves of absence or negotiated terminations with severance. Prosecutors may regard such resolutions as insufficiently punitive and stigmatizing. The time for punishment and stigma at the request of prosecutors, however, is after conviction, not before. DOJ should not define corporate “cooperation” as including the deprivation of “culpable” individuals’ livelihoods and reputations prior to conviction. Third, DOJ wants “culpable” individuals cut off from “information . . . about the government’s investigation.” As a practical matter, the principal relevant information a corporation and its counsel are able to provide usually consists of (i) the documents the corporation has produced to the grand jury and ongoing developments at the corporation, (ii) information corporate counsel has obtained from the government or from counsel for individuals and (iii) privileged information corporate counsel has obtained from corporate employees. The government should have no objection to a “culpable” individual having access to relevant documents. An individual who is prosecuted will have access to them in any event, and preindictment access may facilitate plea negotiations. As a matter of fairness, an individual facing possible prosecution should not have to go through the entire investigation in the dark about the basic documents underlying the potential charges due to prosecutorial pressure on his or her employer. Information about developments at the corporation commonly can be obtained from current employees. Counsel for a “culpable” individual is likely to be able to obtain the second category of information without recourse to corporate counsel. Prosecutors are unlikely to give to corporate counsel information they would not give to other counsel, and information originating with other individuals commonly can be obtained from their individual counsel pursuant to a joint-defense agreement among the individuals and their counsel or from counsel for mere witnesses outside a joint-defense agreement. Discussion among counsel for individuals (without corporate counsel) may also lead to access to the third category of information, which counsel for individuals are likely to be able to reconstruct from interviews with their own clients. Reasons against joint- defense agreements Finally, there are reasons for corporate criminal counsel not to enter into joint-defense agreements with counsel for individuals, quite apart from prosecutors’ views of such agreements. A painful conflict can result from corporate counsel’s receipt of information that is subject to another party’s attorney-client privilege but that also is subject to public disclosure under the securities laws. In general, during a criminal investigation, a corporation can serve its own legal interests and treat its employees humanely without a joint-defense agreement with any of them. Nonprivileged information can be shared without such an agreement; in general, corporations have very little privileged information that is not also available from individuals’ lawyers able and willing to share it. Corporate criminal counsel have good reason to communicate with lawyers for individuals during an investigation. The board and management need and expect corporate counsel to stay informed about the course of the investigation. The corporation has an interest in the speediest possible resolution of the investigation and any resulting charges; sharing of information may well accelerate that resolution. And, of course, the corporation has an interest in avoidance or minimization of charges against itself or its present or former employees. These legitimate objectives may be served by the sharing of information between corporate counsel and counsel for individuals. Such sharing ought not be treated as protecting or supporting “culpable” individuals. DOJ should reconsider its position on these matters.

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