Commentary on The Yates Memorandum

In 2015, then Deputy Attorney General Sally Yates issued a DOJ memorandum on the subject of Individual Accountability for Corporate Wrongdoing, available in full here.  Known as the Yates Memorandum, the DOJ issued this directive to focus on holding individuals responsible for the illegal acts of the corporations for which they worked.

The memorandum, along with DAG Yates’ subsequent remarks, has generated much debate about whether the DOJ was, at least implicitly, returning to a culture of pressuring companies to waive the attorney-client privilege and work-product doctrine.  Now almost three years old and subject to modification under the Trump Administration, Professor Gideon Mark published an excellent article tracing the DOJ memoranda preceding the Yates Memo, and expressing concern over privilege waiver:

[T]he Yates Memorandum is likely to result in continued waivers of the attorney-client privilege and attorney work product protection, even if the DOJ does not make express requests. Waivers no doubt aid the DOJ in criminal and civil investigations, but they also undermine and weaken the attorney-client relationship and the ability of corporations to effectively negotiate with the DOJ during enforcement actions.

Professor Mark proposes tweaks to the memo, including making explicit that DOJ will not implicitly require privilege waiver for cooperation credit.

Still, the Yates Memorandum could benefit from some tweaking. If the DOJ is serious that it does not seek waivers of the attorney-client privilege or attorney work product doctrine, then it probably should make that explicit. Currently, the Memorandum merely states that the DOJ does not require waivers. This is a very different situation from one in which companies nevertheless feel compelled to waive in order to obtain cooperation credit. Similarly, the DOJ should make clear that participation in a joint defense agreement will have no negative impact on whether, or to what extent, a company receives cooperation credit.

The article is a good read, and not just because it cites my article, co-authored with Ty Howard, titled In-House Counsel: Protecting the Privilege in a Post-Yates Memorandum World, 31 Corporate Counsel, No. 3, June 2016 (available here).  You may access Professor Mark’s article, The Yates Memorandum, 51 U.C. Davis L. Rev. 1589 (2018), here.

Protecting the Privilege in a Post-Yates Memorandum World 1

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 Yates Memocounsel 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.