The Chicago Tribune (via the Albany Times-Union) has an interesting article about the state of corporate criminal liability. It reports that business lobbying groups have been busy:
Meanwhile, business advocates have targeted enforcement aimed at corporations rather than individuals. They tallied a victory in December when the Justice Department put new restraints on prosecutors who were demanding the legal communications of companies under threat of indictment.
The routine practice of forcing those businesses to waive attorney-client privilege as a condition of settlement violates the rights of defendants, critics say. And even the new restraints fail to go far enough in protecting companies from being indicted, they assert.
“We’ve learned something from Andersen, where thousands of innocent people were ruined,” said Hal Scott, a Harvard University law professor who heads a pro-business lobbying group. “You should only prosecute when the whole company is criminal from bottom to top.”
The McNulty Memorandum is also a positive development for corporations and individuals confronted with government investigations. Corporations can continue to properly invoke the attorney-client privilege, the oldest privilege in the law. As a result of the privilege’s continuing vitality, the quality and accuracy of internal corporate investigations are likely to improve because individual employees are prone to be more candid when they have better reason to believe that their statements will not be turned over to the government.
And perhaps better able to detect problems and implement solutions before agents serving subpoenas knock at the door.
Tomorrow a view of how a recent court ruling fits into the corporate “criminal” puzzle.