In 2015, the Yates Memorandum was distributed to senior officials at the United States Department of Justice. This Memorandum aims to increase the prosecution of individuals who are responsible for corporate wrongdoing by providing cooperation credit to corporations that provide evidence of the individual’s wrongdoing to assist the government in resolving the criminal investigations against the corporation itself. The Author begins by explaining the history of corporate criminal liability, and describes how the law has progressed to hold a corporation responsible for the actions of its employees. The Author then examines how the Justice Department’s approach to investigating corporate crime has evolved over the years—this includes encouraging corporations to waive attorney‐ client privilege for the benefits of cooperation. The Yates Memorandum continues this trend by requiring that a corporation turn over all relevant information in order to receive credit for its cooperation.
The Author argues that the Yates Memorandum is problematic because it promotes a culture of distrust between the employees and the directors of corporations, while also eroding the benefits of attorney‐client relationships. The Author further argues that the Yates Memorandum essentially requires defendants to prosecute themselves, which is in direct opposition to the principle that the prosecution has the burden of proving the defendant is guilty. Instead of continuing to delegate investigations to corporations, the Author suggests that the Justice Department ask Congress for the additional resources needed to investigate the allegations of corporate wrongdoing on its own. The Author concludes by asking the Justice Department to reconsider the Yates Memorandum to avoid the risk of the unintended consequences that it poses.