The Thompson Memo’s Current Challenge

The Senate Committee on the Judiciary will hold a hearing on “The Thompson Memorandum’s Effect on the Right to Counsel in Corporate Investigations” tomorrow, September 12.  The tentative witness list includes Paul J. McNulty, Deputy Attorney General; Edwin Meese, Former Attorney General; Thomas J. Donohue, President and CEO U.S. Chamber of Commerce; Karen J. Mathis, President American Bar Association; Andrew Weissmann, Jenner & Block LLP; and Mark B. Sheppard, Sprague & Sprague.  Curiously, last week former Attorney Generals and Solicitor Generals sent a letter to Attorney General Alberto Gonzales petitioning his support to change the Justice Department’s policies regarding waiver of attorney-client privilege and work-product doctrine, which the letter characterizes as “seriously eroding these protections.”  (see also Blog entries of Aug. 14, “ABA Resolutions to Preserve Rights in Prosecutorial Process Are A Beginning, Not An End”; July 27, “Measuring Cooperation: Give the Government What it Needs, Not What it Wants”).  While supporting ongoing efforts to fight corporate crime, the bipartisan letter attacked the Thompson Memo and its policies as “seriously flawed and undermines, rather than enhances, compliance with the law.”  Tomorrow’s hearing, specifically Mr. McNulty’s testimony, should provide insight as to the Department’s response and, possibly, the fate of the Thompson Memo.