Tuesday May 17, 2016
Last fall, the Department of Justice issued an important policy—in what is now known as the Yates Memorandum, named for Deputy Attorney General Sally Quillian Yates—reinforcing its intention to pursue individuals for corporate wrongdoing (see our prior coverage here). Last week, in remarks at a white collar conference in New York, Yates addressed concerns about how the policy may impact attorney-client privilege at corporations under investigation.
According to her prepared remarks, Yates said that “there is nothing in the [policy] that requires companies to waive attorney-client privilege or in any way rolls back protections already in place.” She noted that the policy “specifically requires only that companies turn over all relevant non-privileged information.” To her knowledge, “no one has told us that they will be forced to waive privilege in order to comply with the policy.” As to situations in which there are privilege claims, Yates stated that “if there is a valid claim of privilege as to a relevant fact, we expect that it will be brought to the prosecutor’s attention.”
It is possible that, as Yates stated, the Department will not require the disclosure of privileged information in order to grant a company cooperation credit. However, it is also possible that the Department indeed wants privileged information and cannot say so publicly; or that it is signaling that companies shouldn’t hire counsel to conduct investigations or represent individuals during investigations. Despite the Department’s assurances, the fact remains that if a company under investigation learns relevant facts about individual wrongdoing in a privileged setting, it may find itself in a challenging position. Yates’s guidance is to bring the claim of privilege to the prosecution’s attention. There is a real risk, however, that if the prosecution disagrees with the claim, it will withhold cooperation credit.
SKV regularly represents corporations and individuals in internal investigations, government investigations, and government prosecutions. If you have any questions, please contact Dane Ball, David Isaak, Shaun Clarke, or Karima Maloney.