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The session was titled “Keeping the Government Out of the Boardroom,” but that battle, even the organizers had to admit, has already been lost. So the audience for the panel discussion, held during the American Bar Association’s August convention, got the next best thing: lessons on how to avoid indictment when the government starts nosing around. Better yet, the seminar featured the Department of Justice official who oversees federal fraud prosecutions. Deputy Assistant Attorney General Alice Fisher talked about her agency’s internal guidelines for deciding whether to file an indictment, and what companies can do to appease prosecutors. It’s a subject that Justice officials rarely discuss outside of the department. Indeed, the ABA panel was the first time that Fisher had spoken publicly on the topic since taking her post a year ago. Interviewed after the bar association meeting, she said that she wasn’t sure she should discuss the department’s internal guidelines. But Fisher — who came to Justice from the Washington, D.C., office of Los Angeles’ Latham & Watkins — decided that the information might be useful for corporate counsel. Federal prosecutors decide whether to indict corporations using an analysis developed during the insider trading and savings and loan scandals of the late eighties and early nineties. Those criteria were codified in 1999 by then-deputy attorney general Eric Holder Jr., in a 13-page internal memorandum. The “Holder memo” identifies eight factors for prosecutors to consider when deciding whether to indict a corporation. � Nature of the Offense � Pervasiveness of Conduct � History of Conduct � Timeliness of Disclosures � Adequacy of Compliance Program � Remedial Action � Collateral Consequences � Noncriminal Remedies While the Justice Department guidelines aren’t unknown to corporate attorneys, they’ve taken on heightened importance in the current environment, when so many companies are under investigation. Using the Holder memo as a framework, Fisher outlined for ABA members some mistakes that even sophisticated attorneys make when negotiating with prosecutors. For instance, it’s common for corporate counsel to complain to Justice officials in Washington, D.C., about local U.S. Attorneys. “Everyone thinks their prosecutor is nuts,” Fisher said. But this argument almost never sways the department, she explained, and can antagonize prosecutors. Other serious missteps that Fisher and the rest of the panel cited: � letting a company official contact the local member of Congress to try to rein in prosecutors (“We love that,” Fisher said sarcastically); � allowing the CEO to meet with prosecutors to “straighten things out”; and � retaliating against whistleblowers or their families. But not all issues are so straightforward. Veteran white-collar criminal defense lawyer Theodore Wells Jr., told the ABA audience that the government is increasingly pushing companies to waive their attorney-client privilege as a sign of good faith. “It’s become a litmus test of ‘good corporate citizenship,’” maintained Wells, a partner in New York’s Paul, Weiss, Rifkind, Wharton & Garrison. Some waivers have become so broad, he added, that in a 1999 case involving Royal Caribbean Cruises Ltd., the plea agreement required counsel to testify from memory about meetings if no notes or documents existed. Fisher said that prosecutors won’t indict a company just because it won’t waive its attorney-client privilege. But she conceded that a partial waiver — particularly one regarding legal advice given in connection with past suspect actions — is taken as strong evidence of an intent to cooperate. One important drawback to making a waiver, the defense lawyers on the panel noted, was that even if the government agrees to keep information confidential, producing it to prosecutors probably makes it discoverable by trial attorneys in related civil litigation. But beyond such sticky issues, there are basic rules to follow in negotiating with the government on a possible indictment. Click here for some useful tips from Fisher and her copanelists.

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