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The American Bar Association last week issued a policy statement objecting to the Department of Justice policy of urging companies under criminal investigation to cut off the payment of legal fees to their employees. It is the second time in a year that the ABA has attacked the so-called Thompson memo, which outlines strategies the DOJ uses to compel companies to cooperate with investigations. The fact that the ABA approved the statement unanimously at its annual conference in Hawaii indicates the “concern of the organized bar with the manner in which the Thompson memo has been carried out,” says Jan Handzlik, a partner with Howrey’s Los Angeles office and a member of the ABA task force that drafted the recommendations. The ABA’s criticism comes on the heels of a June 27 ruling, in the case of former KPMG employees by Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York, that the guidelines in the Thompson memo that state that prosecutors can interpret a company’s willingness to advance legal fees as a sign of lack of cooperation violated employees’ Fifth Amendment right to a fair trial and Sixth Amendment right to legal representation. “You’d think DOJ can’t stick its head in the sand anymore” now that an organization as large as the ABA has come out against these practices, says Stephanie Martz, director of the White Collar Crime Project at the National Association of Criminal Defense Lawyers and a liaison to the task force. Kathleen Blomquist, a DOJ spokeswoman, says the department remains committed to the principles in the Thompson memo but would continue to listen to groups’ concerns about DOJ policies. She adds, “The government does not force corporations to do anything that it is not in their business interest to do.” Interestingly, Larry Thompson, who served as deputy attorney general when the DOJ overhauled its guidelines for corporate prosecutions, is also a member of the ABA’s task force, although other task force members say he hasn’t participated in the discussions on the issue.
Alexia Garamfalvi can be contacted at [email protected].

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