Disclose or Not Disclose: That is the question.

Deputy Attorney General Yates recently gave an update on the infamous Yates memo.  At the recent New York Bar Association White Color Crime Conference, Yates told the attendees "Our goal is not to collect corporate heads".  Despite the "reassurance",  there is still a lot of fear in corporate suites about the implementation of the new DOJ directive.

Companies and their legal counsel are concerned that there is little value in obtaining cooperation credit by offering up a culpable executive.  Employees may refuse to cooperate, plead the 5th Amendment, and/or demand a lawyer.  Another likely outcome is that there is a lot of finger pointing in the executive suite.  There is little incentive for the individual to cooperate.  Employees will be afraid or unwilling to talk based on their own concerns about exposure. 

It is unclear that the corporation will get cooperation credit.  In order to "cooperate", the corporation will have to do an intensive investigation. In the end, there may be full disclosure but not full credit.  The cooperation credit is not conditioned on the waiver of work product protection or privilege, but in most situations, the company will be forced to disclose their investigative processes and outcome.

The adverse effects to an organizational culture are extreme and the result is an "every man (woman) for himself" mentality.  In the end, it is hard to value the cooperation credit---if any.  https://www.instituteforlegalreform.com/research/dojs-new-threshold-for-cooperation-challenges-posed-by-the-yates-memo-and-usam-revisions?utm_source=website&utm_medium=media&utm_campaign=DOJs_New_Threshold_For_Cooperation_052516_ES