McNulty Memorandum Revises DOJ Guidelines for Corporate Prosecutions, but Is It Enough?

Deputy Attorney General Paul McNulty recently revised Department of Justice (DOJ) guidelines concerning the federal prosecution of business organizations (the "McNulty Memorandum"). The McNulty Memorandum replaces DOJ’s prior guidelines, which were issued in 2003 by then Deputy Attorney General Larry Thompson (the "Thompson Memorandum"). Notwithstanding the McNulty Memorandum, companies under investigation will still face the same pressures that they faced under the Thompson Memorandum, which linked a determination of whether a company was "cooperative" to whether that company waived the attorney-client privilege, work product protections, and whether that company refused to advance legal fees to its employees. As a result, the McNulty Memorandum does far too little to correct any prosecutorial overreaching arising from the Thompson Memorandum.