Environmental Law

An Open Request to Eric Holder?

By Walter James

Eric Holder, Marc Rich and THE Memorandum.  Marc Rich, Marc Rich, Marc Rich.  Mention Eric Holder and that may be all you hear.  You probably pass over the fact that he will be the first black attorney general.  And, you probably pass over the fact that he authored the ?Holder Memorandum.?  Eric Holder is the former Deputy Attorney General under President Clinton.  The Holder Memorandum (issued in 1999) has largely been ignored in the recent press.    The Holder Memorandum was a directive to prosecutors that instructed the prosecutors when deciding to indict a company to consider ?cooperation.?  "Cooperation" was defined in part by whether the company agreed to waive the attorney-client privilege and its work-product exemptions (essentially to turn over all of the confidential information) developed during that company?s internal investigation.  Another factor was whether the company paid an employee?s legal fees (in some states, companies are required by law to do so).  In fact, ?cooperation? often required the company to fire responsible employees.  The effect was a deep freeze on the company?s ability to aggressively defend itself.     

The Holder Memorandum was subsequently replaced in 2003 by the Thompson Memorandum (we then had the McNulty Memorandum and now the Filip Memorandum ? the chronology is dealt with in previous posts).  The Thompson Memorandum was more far reaching in defining ?cooperation.?  While one can hope that Mr. Holder has gained wisdom over the years, it does highlight the fact that the protection of the attorney-client communication privilege and the work-product exemption needs a boost from legislation ? the passage of the Spector bill would go along way. 

What the DOJ could do (bring back the Holder, Thompson or McNulty Memoranda) is not what the criminal justice system needs.  A role back of the Filip Memorandum to the days of Holder, Thompson and McNulty?  There have been advances made on the issue of privilege and waiver (for instance the new Rule 502 of the Rules of Evidence).  Perhaps it is time to resurrect the Attorney-Client Privilege Act of 2007.

For another perspective on the topic, see ERIC HOLDER, Remember the memo, by Harvey Silverglate, Special to The National Law Journal, December 8, 2008, at

www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202426473951

More later.

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

WDJiii

Full post as published by Environmental Crimes Blog on December 04, 2008 (boomark / email).