Protecting the Privilege in a Post-Yates Memorandum World

Internal investigations have always posed vexing issues for in-house counsel. Investigations arise in many different ways. They can involve relatively small to bet-the-company risks. In-house counsel need to make difficult decisions on matters like scope and purpose of the investigation, who will conduct the investigation, how will costs be controlled, and the work product that they will generate.

But perhaps the toughest issue pertains to protecting the attorney–client and other applicable privileges.  In-house counsel can now add one more complication: the Department of Justice’s (DOJ) recently issued “Yates Memorandum.” Taking its name from Deputy Attorney General Sally Yates, the memo is an update to DOJ’s Principles of Federal Prosecution of Business Organization, which are memorialized within the United States Attorney’s Manual, the principal internal policy guide for DOJ attorneys across the nation.

The Yates Memo actually marks just the latest chapter in a long history of DOJ wrestling internally with how to treat the attorney–client privilege in the context of corporate investigations and credit for those businesses that cooperate with the government.

In a recent article, Ty Howard, a former Assistant U.S. Attorney, and I explore the 17-year history of DOJ policy announcements related to the prosecution of business organizations and the privilege issues embedded in each policy iteration.  We then examine the Yates memo and discuss how its contents affect the status of privilege waiver.  Ty E. Howard & Todd Presnell, In-House Counsel: Protecting the Privilege in a Post-Yates Memorandum World, The Corporate Counselor, Vol. 31, No. 3, p.1 (June 2016).

You may read the article here.  My thanks to The Corporate Counselor newsletter for publishing our article and allowing its reprint in this post.