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MCNULTY MEMO SAID TO DO VERY LITTLE WASHINGTON � Since Deputy Attorney General Paul McNulty revised the Justice Department’s corporate fraud prosecution policies in December, the department has endured criticism from some who’ve argued that the “McNulty memo” accomplished little. Groups such as the National Association of Criminal Defense Attorneys have argued McNulty’s revisions did not go far enough to discourage prosecutors from demanding corporate defendants waive their attorney-client privilege. But on March 29, when the U.S. attorney’s office in the Southern District of New York announced a non-prosecution agreement with Jenkens & Gilchrist over illegal tax shelters that the now-defunct firm promoted, prosecutors were careful to note in writing that “J&G is not waiving any attorney-client or work product privilege.” That’s an about-face from how the same U.S. attorney’s office handled its tax-shelter investigation of accounting firm KPMG, which was forced to waive attorney-client privilege in 2005; and how the Justice Department handled its probe of plaintiffs firm Milberg Weiss, which was indicted last spring after refusing to waive privilege. Some defense lawyers say the agreement looks like a public relations move. They’re doing backflips to say they don’t ask for waivers,” says Fried, Frank, Harris, Shriver & Jacobson’s William McGuinness. Adds Aitan Goelman, a former federal prosecutor at Zuckerman Spaeder: “This could be a case where the department wants to point to a case where it can say, ‘We’ve changed; [the McNulty memo] really does mean something.’ ”

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