The Thompson Memorandum In Short: Attorneys' Fees and Waiver of Corporate Attorney-Client and Work Product Protection

Publication Date: January 2007

Publisher: Library of Congress. Congressional Research Service

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Research Area: Law and ethics

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Abstract:

Corporations are subject to civil and criminal liability for misconduct, committed for their benefit, by their officers, employees and agents. Under most circumstances, they enjoy the right to attorney-client privileges and attorney work product protection in connection with government investigations of possible misconduct. The Justice Department's Thompson Memorandum in describing federal prosecution policies suggested that a corporation faced an increased risk of prosecution if it claimed those privileges or if it paid the business-related litigation costs of its officers and employees. The Memorandum has sparked considerable debate before Congress and elsewhere. Among other events, at least one federal court has concluded that the manner of implementing the policy ran contrary to the dictates of the Fifth and Sixth Amendment. A curative amendment to the Federal Rules of Evidence has been proposed. The Memorandum has been revised. Both Houses held hearings on the matter during the 109th Congress and related legislation has been introduced during the 110th (S. 186). This is a brief discussion of the controversy's legal background and chronology.

This is an abridged version of CRS Report RL33842, The Thompson Memorandum: Attorneys' Fees and Waiver of Corporate Attorney-Client and Work Product Protection, without the footnotes and citations to authority found in the longer report.