Chamber Declares Portions of Thompson Memo Unlawful

WASHINGTON, D.C.—The National Chamber Litigation Center (NCLC) today filed an amicus brief urging a New York district court to declare portions of the Thompson Memorandum as unconstitutional in cases where the Justice department thwarts private fee arrangements for the legal representation of corporate directors, officers and employees.

"The government's intervention in private fee arrangements threatens the basic principles of our justice system," said Robin Conrad, NCLC senior vice president. "This puts corporate counsels in untenable positions. For example, if they support an employee by agreeing to cover their legal fees, their company may be deemed 'uncooperative' by the government in an investigation."

Many private businesses agree to advance attorneys' fees to employees under investigation for conduct arising from their employment, according to NCLC's brief. Such arrangements are necessary both to recruit talented individuals to work in industries subject to close governmental scrutiny and to ensure that those individuals act in the interests of their employers.

According to the Thompson Memorandum, the government itself decides which unconvicted corporate employees the corporation should consider "culpable," and it coerces corporate counsel to withhold previously promised support for those employees' legal defense.

"Fee advancement agreements provide corporate managers security in knowing that they will be able to defend themselves effectively against unfounded allegations of wrongdoing," said Conrad. "The government's current policy undermines that sense of security. The Thompson Memorandum is therefore wrong both as a matter of constitutional law and as a matter of sound business sense."

The U.S. Chamber of Commerce is the world's largest business federation representing more than 3 million businesses and organizations of every size, sector, and region. The National Chamber Litigation Center is a membership organization that advocates fair treatment of business in the courts and before regulatory agencies.

www.uschamber.com

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