BOSTON–LAWFUEL – The Law Newswire – A conference of corporate general counsel and defense attorneys, sponsored jointly by the Boston law firm of Nutter McClennen & Fish LLP and the Association of Corporate Counsel-Northeast Chapter (ACC), found that corporate in-house counsel are increasingly being subjected to government criminal investigations and that fundamental protections of attorney-client privilege are being undermined by aggressive federal prosecutors.
“There has been a sea change in the relationship between federal prosecutors and corporate general counsel,” observed Robert Ullmann, a partner and chair of the Government Investigations and White Collar Defense group at Nutter. “More and more, prosecutors are targeting lawyers, even bringing criminal charges against counsel for behavior that is part and parcel of their duties and responsibilities. These are increasingly challenging times to be a general counsel.”
Susan Hackett, Senior Vice President and General Counsel of the national ACC, focused attention on the erosion of attorney-client privilege in the corporate setting. “Recent erosions in the privilege, largely stemming from aggressive prosecutorial and enforcement tactics,” Hackett stated, “call into question the viability of corporate clients’ reliance on their rights to confidential counsel.”
Participants in the conference found that prosecutors’ determination to implicate in-house counsel in investigations of possible wrongdoing by corporate officers was in general counterproductive. Hackett pointed out that “The focus on whether lawyers facilitated the alleged wrongdoing of a company undermines corporate counsels’ ability to effectively perform their duty, which is to ensure that the company complies with statutory and regulatory standards.”
The Department of Justice’s recent adoption of the McNulty Memorandum was interpreted as an effort to derail Congressional legislation that would eliminate the waiver of attorney-client privilege as a factor in determining corporate cooperation in federal investigations. As Hackett of the ACC concluded: “The McNulty Memorandum does little to change the fundamental problems experienced by corporate counsel and clients who know that prosecutors still expect privilege waiver as an important indicator of a company’s cooperation.”
There also was broad consensus at the conference that when a company discovers it is under government investigation, in-house lawyers should bring in experienced outside counsel immediately to assist in formulating legal strategy, collecting documents, conducting internal investigations and interacting with government attorneys. “Prosecutors have a language of their own,” stated Nutter’s Ullmann. “In-house counsel who lack prosecutorial or relevant defense experience should turn to lawyers who speak this language [when dealing with prosecutors].”
In addition to Susan Hackett and Robert Ullmann, other speakers at the conference, which took place at Nutter’s Boston offices on April 26, 2007, included general counsel and a chief compliance officer from both public and private technology and biotechnology companies.
The Association of Corporate Counsel (ACC), the in-house bar association (SM), is celebrating its 25th Anniversary in 2007. ACC serves the professional needs of attorneys who practice in the legal departments of corporations and other private sector organizations worldwide. The association promotes the common interests of its members, contributes to their continuing education, seeks to improve understanding of the role of in-house attorneys, and encourages advancements in standards of corporate legal practice. Since its founding, the association has grown to 22,000 members in more than 70 countries who represent over 9,000 corporations. ACC has 47 chapters and 14 committees serving the membership. Its members represent all of the Fortune 100 companies. Internationally, its members represent 42 of the Global 50 and 74 of the Global 100 companies. For more information, go to www.acc.com.
Nutter McClennen & Fish LLP serves a distinguished clientele across a range of industries and expertise, including global corporations and other public companies, privately held businesses, institutions, families and individuals. The 150-lawyer practice was established over 125 years ago by Samuel D. Warren and his Harvard Law School classmate Louis D. Brandeis, who later was appointed to the Supreme Court of the United States. More information is available at www.nutter.com.