The attorney-client privilege is fundamental to fairness and balance in our justice system and essential to corporate compliance regimes. Without reliable privilege protections, executives and other employees will be discouraged from asking difficult questions or seeking guidance regarding the most sensitive situations. Available on this page are policies, press releases and other guidance from various government agencies relating to the Attorney-Client Privilege and Work-Product Doctrine.  

Jim Brosnahan reveals 10 lessons for trying white collar criminal cases.

on Employee Compensation Clawbacks

Department of Justice guidance issued in March 2023 provided prosecutors with a set of criteria to use when evaluating the compliance programs of corporations facing a resolution to criminal charges, such as a plea agreement, deferred prosecution agreement, or non-prosecution agreement.

Rule 17 of the Federal Rules of Criminal Procedure provides the only means for a criminal defendant to obtain materials from third parties. Despite its broad language, the courts’ application of Rule 17 over the years has seriously limited its usefulness. Marci LaBranche and Carey Bell discuss problems with how the rule has been applied, the current state of Rule 17(c) practice, and how to make a record that encourages change.

The Sentencing Guidelines provide for an increase in the offense level for most fraud or theft offenses based on the amount of “loss” determined by the court. Loss is not defined in the Sentencing Guidelines. However, the commentary defines loss as “the greater of actual loss or intended loss.” Megan Siddall explores a new argument that loss should be limited to actual loss – and not intended loss – in the wake of the Supreme Court’s decision in Kisor v. Wilkie.

White collar lawyers must weigh various considerations in determining how to obtain mobile phone data or limit the government’s access to data. When can the government compel a client to provide the passcode to a mobile device? What is the significance of whether an executive’s mobile phone is owned by the executive or the corporation? This article provides tips about obtaining, protecting, preserving, and reviewing data on mobile phones.

White collar cases are complex, and the clients in these cases are often part of society’s higher social strata. From “being bold” at the first meeting with the client to dealing with the client’s desire to talk to the press, veteran defense attorney Jim Brosnahan offers 10 tips that will make a white collar representation smoother.

Federal statutes should provide a person of ordinary intelligence fair notice of what is prohibited, but the term “property” is undefined by the federal fraud statutes. The internet, untethered digital currency, and the metaverse are raising questions about the traditional understandings of things and possessions. Legislators need to provide greater clarity about how older statutes apply to newer concepts.

The NACDL Board supports legislative efforts to reform existing federal restitution law to ensure fairness and accuracy; prevent restitution obligations from being overly burdensome; and to make it easier for restitution orders to be satisfied.

This month Susan Elizabeth Reese reviews In the Lions’ Den: The Penn State Scandal and a Rush to Judgment by Graham Spanier.

Facing Sentencing Guidelines Above Zone C

How can defense counsel utilize a provision within the Criminal Code, implemented by the Sentencing Guidelines, that allows for a split sentence in Zone D cases through the post-imprisonment condition of supervised release? Joseph A. DeMaria and Marissa Koblitz Kingman explain how to argue for the Zone D split sentence.

Forfeiture reform letters of support from NACDL and its partners, and from others.

NACDL frequently testifies or provides comments on new and evolving criminal legislation and policies affecting white collar-related criminal law. This includes live testimony before the House and Senate Judiciary Committees and the U.S. Sentencing Commission, as well as written testimony, letters, and commentary submitted to Congress, the U.S. Sentencing Commission, the Securities and Exchange Commission, and other executive branch agencies.

We, the undersigned organizations, write in opposition to S. 686, the “Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act,” or the “RESTRICT Act.” The RESTRICT Act aims at information and communications (ICTs) technologies like TikTok that are considered a threat to the United States. 

Part I: The Basics

According to the government, the goal of forfeiture is to take the profit out of crime. The government seeks to take private assets – including cash and real property – that it claims constitute the proceeds of criminal activity. Steven L. Kessler discusses some of the basics every attorney should know about forfeiture.