A Year Later, GCs Say Yates Memo Undermining Their Roles

, Corporate Counsel

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Some GCs say that, in the year since the infamous Yates Memo took effect last September, it has turned in-house counsel into investigators for the DOJ and damaged their credibility with employees.

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What's being said

  • David Crow

    The Yates Memo is wrong. It obliterates the attorney-client privilege between inside counsel and the managing executives of a corporation by blackmailing inside counsel into ignoring this privilege. This means that inside counsel cannot have privileged communications with senior executives and, thus, more than a chilling effect on communications. This inhibits inside counsel, among other other things, from preventing violations in the first place. I see that this would leave only outside counsel, such as commener Mr. Garvey below, from having a privilege. In summary, I think the Yates memo is entirely wrong.

  • Jack Garvey, Esq. The Garvey Law Firm

    "If in-house counsel are seen as the investigative arm of the Department of Justice, then they [employees] don‘t really believe that you are looking out for their best interests," Jones says. And appropriately so, because you‘re not. It‘s fundamental that Corporate counsel have a duty to their client -- the corporation -- not individual employees. I would argue that the Yates Memorandum helps to clarify the role of corporate counsel, since often employees are not sophisticated enough to know that corporate counsel are not representing their interests -- especially in an investigative setting. Further, there is at least one substantive area -- Food and Drug Law -- where individual/personal liability exists for the acts of an employee -- and often those employees don‘t receive sufficient guidance or training as to their individual legal obligations -- and commensurate risk. Did Yates make things tougher for GCs? Perhaps. But perhaps that‘s not such a bad thing either.

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