The U.S. Department of Justice (DOJ) detailed new rules that would focus investigations of corporations on responsible individuals and warned that companies cannot abuse the attorney-client privilege to hide key facts in criminal investigations.
On Monday, Deputy Attorney General Sally Yates, who issued the so-called Yates Memoranda in September, detailed DOJ policy on how the department will pursue criminal cases. Yates’ comments, at the ABA’s Money Laundering Enforcement Conference, specified changes to the United States Attorney’s Manual which establish objectives for criminal and civil investigations of corporations.
In prepared remarks, Yates provided a new mission statement for DOJ investigations: not to recover the largest amount of money from the greatest number of corporations but to “seek accountability from those who break our laws and victimize our citizens.” The changes make clear the practical impact of the shift to prosecuting individuals, not just corporations. Yates also cited a number of steps that prosecutors are expected to take to maximize the opportunity to pursue individual wrongdoers.
The new policy makes clear that if a company wants credit for cooperation, any credit at all, it must provide the government all non-privileged information about individual wrongdoing. Yates pointed out that a company seeking cooperation credit is expected to perform a timely, thorough and independent investigation and “report to the government all relevant facts about all individuals involved, no matter where they fall in the corporate hierarchy.” This new policy makes it clear that providing complete information about individuals’ involvement in wrongdoing is a “threshold hurdle” that must be crossed before the DOJ will consider any cooperation credit.
Yates’ comments were directed toward questions about possible violation of the attorney-client privilege or protection of attorney work product. Yates clarified that while DOJ recognizes that “legal advice is privileged, facts are not.” In order to earn cooperation credit, a corporation is required to produce all relevant facts, including facts learned through internal investigation interviews. Yates warned outside counsel “not to wrongly exploit attorney-client privilege to shield non-privileged information from investigators.”
Yates clarified that a company will not be disqualified from receiving cooperation credit simply because it does not have all facts confirmed when cooperation begins. She envisioned a rolling production of information which is provided to government investigators as the information is obtained. Prompt voluntary disclosure by a company will be treated as an independent factor weighing in the company’s favor.
The modification of the United States Attorney’s Manual also changes the direction provided to civil attorneys in corporate investigations. Yates stated that civil attorneys will be instructed that an individual’s ability to pay cannot be the sole determining factor in decisions whether to pursue individual misconduct in civil cases.
In her final comments, Yates dismissed speculation that the new policies will mean fewer companies will cooperate with the government because the new standards would be difficult to meet. Yates dismissed objections that a company would forego the substantial benefits of cooperation credit solely to avoid providing information about individual misconduct. She stated that it would be particularly difficult for a publicly traded company to give up the opportunity to get cooperation credit given its fiduciary duty to shareholders.