In September 2015, Deputy Attorney General Sally Yates released a memorandum to all Department of Justice prosecutors detailing certain principles prosecutors must follow when addressing the question of individual responsibility of corporate officers in the commission of corporate crime. The memo, “Individual Accountability for Corporate Wrongdoing,” known informally as the Yates Memo, impacts the professional responsibilities of attorneys who work for, prosecute, or defend companies who find themselves under investigation. During this webinar, speakers will address some of the ethical concerns, including the impacts of the Yates memo on work-product, attorney-client privilege, corporate investigations, and defense of a company and its employees. Learn what your ethical and professional responsibilities are as an attorney under the Yates memo and related government investigations.
Ralph Caccia, Partner, Wiley Rein LLP
Charles F. Connolly, Partner, Akin Gump Straus Hauer & Feld LLP
Kathleen L. Matsoukas, Partner, Barnes & Thornburg LLP
Moderated by Jon Smollen, Director, Center for Compliance and Ethics, Beasley School of Law, Temple University
Audience Level: Introductory/Intermediate/Advanced
- +$100 for non-members
- Ask live questions
Webinar & Recording
- +$100 for non-members
- Live & ongoing access
The Yates Memo: A Lawyer’s Professional Responsibility
An FDLI Webinar | December 14, 2016
2:00 – 3:30pm ET
- Triggers for internal investigations
- Ethical considerations when managing multiple audiences
- Ethical considerations when managing multiple clients
- Current incentives for voluntary disclosure and impact of potential individual
prosecutions on ability to conduct internal investigations
The Yates Memo
- Implications of the Yates Memo
- Impact on selecting and conducting investigations by federal prosecutors
Interacting with Individuals: Representation Issues
- Ethical issues regarding representation of multiple individuals (“Pool Counsel”)
- Rule 1.7 and 1.0(f)
- Providing Documents and other materials to individual counsel
- Ethical issues when company counsel also represents individuals
- ABCNY Formal Opinion 2004-02 (June 2004) discusses considerations
- Upjohn warnings are advisable. Cf Rule1.18(b)
- Witness Interviews
- Ethical considerations in preparing for Witness Interviews
- Ethical considerations in conducting witness interviews
- Best practices re: Upjohn warnings
- Ethical considerations in documenting witness interviews
- Revisiting Upjohn under the Yates Memo
- Idea of the “Corporate Fifth Amendment Privilege”
- Overall impact of Yates Memo on Internal Investigations and Corporate Compliance Programs
- U.S. v. Stein (2d Cir. 2008): Government interference with Sixth Amendment right to counsel
- DOJ has issued assurances that it will not pressure Companies; under Yates, there is renewed skepticism that the DOJ won’t try to do this by claiming a lack of cooperation.
- Government requests for information in the internal investigation may encroach on the Attorney-Client privilege and work product protections.
- Limited Waiver agreements and Fed. R. Evidence 502.
Continuing Legal Education
Continuing Legal Education credits will be awarded for attending this program.
FDLI applies directly to Ohio, Pennsylvania, and Virginia. New York recognizes Pennsylvania approvals. These states are generally recognized as approved jurisdictions by other states, however, each state bar has its own requirements, and it is the responsibility of the attorney seeking CLEs to know and fulfill such requirements. Please contact your Bar Association for guidance.
Virginia, Pennsylvania, and Ohio approvals are pending.
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