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In the late 1990s they griped about the Holder memo. In 2003 they attacked the Thompson memo. Now white-collar criminal defense lawyers must figure out what to make of the McCallum memo. The three Justice Department memos all address standards used in criminal prosecutions of business entities. The memo names refer to the DOJ officials, past and present, who wrote them — Eric Holder Jr., Larry Thompson, and Robert McCallum Jr. The latest memo, just a single page issued on Oct. 21, reaffirms that prosecutors weighing charges against a company may consider whether its management assisted investigators by waiving attorney-client privilege. Defense lawyers have long warned that the policy encourages prosecutors to demand waivers of attorney-client privilege from companies in exchange for leniency, and say the practice has become the norm instead of an exception. The McCallum memo is a disappointment for attorneys who had hoped the DOJ would reform its policy in response to pressure from groups such as the American Bar Association. “When I was in law school I learned that the attorney-client privilege was inviolate, but in the last few years the Justice Department has totally eviscerated it,” says Stephen Grafman, a partner in the D.C. office of Kirkpatrick & Lockhart Nicholson Graham. In the latest DOJ memo, McCallum instructs each U.S. attorney’s office to develop a written policy for requesting waivers of attorney-client and work-product privileges. McCallum points to existing policies in some offices that require the approval of the U.S. attorney or another supervisor. The memo, however, does not make such approval mandatory, and it states that policies can vary from district to district. King & Spalding partner Christopher Wray, former chief of the DOJ Criminal Division, says most prosecutors recognize that asking a company to waive its legal privileges is a big deal. “What this memo does is caution U.S. attorneys that asking for a waiver is a major request.”
Vanessa Blum can be contacted at [email protected].

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