The Filip Memorandum: Does It Go Far Enough?

With the McNulty memo finally dead, law.com asks if the new guidelines have gone far enough. Nope:

Beyond its treatment of privilege waivers, the other changes announced by
the Filip Memo are somewhat of a mixed bag. The memo clearly strengthens the
prohibition on prosecutors' consideration of a corporation's decision to
indemnify its employees. But other new protections it announces appear largely
illusory.For example, although the Filip Memo provides that prosecutors can no
longer consider a company's retention or discipline of culpable employees as a
factor affecting cooperation credit, it allows the government to continue to
consider retention or discipline as a factor affecting remediation. Since, under
the Filip Memo, both cooperation and remediation are factors affecting the
charging decision, it is unclear whether there is any significance to this
change. Similarly, although the Filip Memo generally prohibits the
government from considering whether a company entered into a joint defense
agreement, it also indicates that if a joint defense agreement prevents a
company from disclosing relevant facts, the failure to disclose will weigh
against the corporation receiving cooperation credit. Accordingly, companies
will either continue to be penalized for entering into joint defense agreements
or attempt to negotiate one-sided agreements that permit full disclosure by the
company while providing little protection to the individual employees who join
the agreement.

White Collar Justice

We have blogged previously about this case and the misconduct of the DOJ. With this decision, the DoJ revised it's standards and the odious Thompson Memo. The WSJ Op/Ed has this to say:

Congratulations to Lewis D. Kaplan, the federal judge whose withering critique of prosecutorial abuse in the KPMG tax-shelter case was vindicated yesterday by the Second Circuit Court of Appeals.

In fact, you can double that applause, because yesterday the Justice Department went further and once again rewrote its white-collar prosecution guidelines to accommodate Judge Kaplan's demolition. Whether Justice anticipated its legal defeat before the surrender is less important than the fact that it has now restored a measure of due process fairness to corporate defendants and their employees.

More DOJ Idiocy - Now They Attack Lawyers

Is there any Shakespeare line used out of context more than Dick in Henry Vi’s “first thing we’ll do, let’s kill all the lawyer”? In the context of the play it is clear the line is used to express the yearnings of the ignorant masses as they mistake anarchy for freedom. Dick the butcher sees the rights of man and the legal process, as standing in the way of his glorious rebellion. The line is a warning against anarchy; it’s not a society that anyone would want to live in.

What would happen if lawyers were not able to vigorously represent their client? If the State turned from prosecution suspected criminals to going after their lawyers? When the legal process is subverted for expediency then justice is perverted.

This is the case with Miami lawyer Ben Kuehne who has been indicted on money laundering charges by the DOJ. Since they can’t kill the lawyers, throwing them in jail must be their next best alternative:

Taking the podium, Kuehne waited for the rousing applause to die down, and then began his acceptance speech with a brief discourse on the importance of justice. “The U.S. is fortunate that our system of justice is premised on the ability of the people to rely upon the advocacy of lawyers,” he said. “Our constitution guarantees that right, a right that is at the core of our system of justice.”

Kuehne spoke not only to his audience of criminal defense lawyers, but also to his case, which some say sends a discouraging message to lawyers who take large fees for defending drug dealers. Roy Black, the lawyer who represented Ochoa Vasquez in the underlying drug case, made $5.2 million; Kuehne, hired by Black to vet the funds used to pay Black’s fee, made $200,000.

Kuehne went on to allude to John Adams, “a patriot who was called a traitor” for defending British soldiers who were charged after the Boston Massacre, and former Supreme Court Justice, Hugo Black, who said that a democratic society requires lawyers who will defend unpopular clients and causes. “We live in a time that is not kind to the justice system,” said Kuehne, “when the right to counsel is under attack, when those who oppose government overreaching are viewed as trouble. Today, it’s a recurring problem that, within government circles, lawyers are the problem.”

Justice Prevails in KPMG Case

Today Judge Kaplan dismissed charges against 13 KPMG's due to DoJ misconduct. The case demonstrated the lengths the DoJ would go to get headline generating victories.

The same case also showed the difficulty of fighting baseless prosecutions. Some costs estimates for the defendants were close to $40 million, giving the prosecution tremendous leverage against the accused. The same prosecution also held a proverbial gun to the head of KPMG and threatened to shut them down unless they cut off the accused partners. Kaplan said of the case:

The government "foreclosed these defendants from presenting the defense they wished to present and . . . deprived them of counsel of their choice. This is intolerable in a society that holds itself out to the world as a paragon of justice," he wrote.

Ultimately the fate of 13 lives relied solely on the discretion of one judge. He made the right decision this time, but what chance do normal people stand against the unlimited resources and power of the State?