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The Champion

August 2003 , Page 22 

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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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