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Corporate counsel as government's agent: The holder memorandum and Sarbanes- Oxley Section 307
By Robert A. Del Giorno
In recent years, the government has been chipping away at the
corporation’s attorney-client privilege. In 1999, this trend continued
when then-Deputy Attorney General Eric Holder issued a memorandum
entitled “Federal Prosecution of Corporations.”1 This memorandum
(“Holder memo”) essentially established a policy encouraging
corporations to waive the attorney-client privilege and work product
immunity in exchange for possible favorable treatment by prosecutors.2
In a memorandum by now Deputy Attorney General Thompson, the Bush
administration made it clear that this policy will continue to be
enforced. The challenge to the privilege does not stop there. The trend
continues with the enactment of Sarbanes-Oxley’s attorney reporting
requirements. Corporate counsel may now find themselves acting for the
benefit of the government, rather than the client. While the
government’s policy of seeking waivers and imposing affirmative
reporting requirements on attorneys m
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