A Dangerous Departure: Why This Decision Destroys Trust Between Companies and Their Counsel

The DOJ’s New Compulsory Process Policy: A Direct Assault on the Attorney-Client Privilege

In my 25 years as a federal prosecutor, I witnessed the Department of Justice evolve in its approach to corporate investigations, but I have never seen a policy shift as fundamentally dangerous as the one currently unfolding. The DOJ has recently signaled an aggressive expansion of its interpretation of the crime-fraud exception under 18 U.S.C. § 2510(6), coupled with a renewed reliance on Federal Rule of Criminal Procedure 17(c) to subpoena in-house counsel directly. This is not a subtle recalibration; it is a declaration of war on the foundational principle that a company's lawyers are its confidants, not its accusers. The practical effect is that every email, every memorandum, and every oral communication between a corporate executive and their lawyer is now a potential exhibit in a federal indictment.

The specific mechanism of this assault is the DOJ’s revised policy on "compulsory process against attorneys," which I have reviewed in detail with my colleagues. Under this policy, prosecutors are now instructed to seek grand jury subpoenas for attorney testimony and document production in virtually any corporate investigation where there is a "colorable" claim that the legal advice furthered a crime or fraud. The threshold for "colorable" is alarmingly low—far lower than the "probable cause" standard required for a search warrant. In practice, this means a federal prosecutor can argue that a lawyer’s advice on structuring a complex transaction, which later turns out to have been illegal, was itself part of the criminal scheme. The chilling effect on candid legal advice is immediate and devastating.

Let me be clear about the statutory mechanics at play here. The attorney-client privilege, codified in federal common law and recognized by every state, is designed to protect communications made for the purpose of obtaining legal advice. The crime-fraud exception, however, strips that protection when the communication was made in furtherance of a crime or fraud. The DOJ’s new policy systematically blurs the line between legitimate legal advice and alleged criminal facilitation. I have seen prosecutors argue that a lawyer’s recommendation to avoid a specific regulatory filing, based on a good-faith interpretation of the law, constitutes "advice in furtherance of fraud" simply because the client later violated that regulation. This is a perversion of the exception.

The implications for corporate governance are catastrophic. When I was a prosecutor, we respected the privilege as a cornerstone of our legal system, understanding that without it, lawyers cannot provide full and frank advice. Now, the DOJ is effectively telling corporate counsel: "Give your client the best advice you can, but know that if we later decide that advice was wrong, we will use it to indict both of you." This destroys the trust that is essential for any effective attorney-client relationship. A general counsel who must worry about being subpoenaed for every piece of advice they give is no longer a counselor; they are a potential witness against their own client.

The Weaponization of Upjohn Warnings and the Erosion of Corporate Miranda Rights

Every corporate lawyer in America is familiar with the Upjohn warning, derived from the Supreme Court's decision in Upjohn Co. v. United States, 449 U.S. 383 (1981). That case established that when a lawyer represents a corporation, they must clearly inform employees that the lawyer represents the entity, not the individual employee, and that the communication is privileged only as to the corporation. For decades, this warning was a tool for clarity, ensuring that employees understood the limits of their confidentiality. Under the current DOJ regime, however, the Upjohn warning has been transformed into a weapon. Prosecutors now routinely subpoena the notes of these interviews, arguing that the warning itself constitutes an implicit admission that the employee was a potential target.

I have personally consulted on three cases in the last eighteen months where the government demanded production of internal investigation interview notes, including the specific language of the Upjohn warnings given. The government’s theory is that if a lawyer gave a detailed, specific warning—for example, "I represent the company, not you, and I may have to report your statements to the board or the government"—this demonstrates that the lawyer knew the employee was engaged in wrongdoing. This is an absurd and dangerous logical leap. In my 25 years as a federal prosecutor, I gave Upjohn warnings in virtually every corporate interview I conducted, not because I suspected wrongdoing, but because it was the ethical and legal standard. The DOJ’s current interpretation punishes lawyers for being thorough and ethical.

The practical consequence is that corporate counsel are now caught in an impossible dilemma. If they give a comprehensive Upjohn warning, they risk creating a "smoking gun" document that the government will use to argue that the lawyer knew about criminal activity. If they give a minimal warning, they risk violating their ethical obligations under Model Rule of Professional Conduct 1.13, which requires lawyers to clearly communicate their role to organizational constituents. This is no longer a legal strategy; it is a trap. I have advised several general counsels to consider recording all Upjohn interviews with both audio and video, not to protect the client, but to create an independent record that the warning was given properly—a defensive measure that would have been unthinkable a decade ago.

Furthermore, the DOJ’s use of the "corporate Miranda" doctrine, derived from the Sixth Circuit's decision in United States v. Ruehle, 583 F.3d 600 (2009), is being expanded in ways that directly contradict its original intent. In Ruehle, the court held that a corporation’s lawyer did not violate an employee’s Sixth Amendment rights by failing to give Miranda warnings during an internal investigation. The DOJ now uses this case to argue that because no Miranda warning is required, the government can compel the production of any statement made during an internal investigation without any constitutional protections. This creates a Kafkaesque scenario where an employee is interviewed by corporate counsel, told they have no right to remain silent, and then those statements are handed over to federal prosecutors who can use them to build a criminal case. The trust between employee and employer, and between employee and company lawyer, is completely shattered.

The Global Reach of the New Policy: How Foreign Corporations Are Being Forced to Betray Their Local Counsel

This dangerous departure from legal norms is not limited to domestic corporations. The DOJ’s extraterritorial application of the crime-fraud exception, combined with the use of Mutual Legal Assistance Treaties (MLATs) under 18 U.S.C. § 3512, is now being used to pierce the attorney-client privilege of foreign companies that have never set foot in the United States. I have seen cases where the DOJ subpoenaed a German company’s in-house legal department, demanding communications with their German lawyers about German law, on the theory that those communications might have "furthered a fraud" on the U.S. securities markets. This is a breathtaking expansion of jurisdiction that ignores the sovereignty of foreign legal systems and the fundamental right of any company to confidential legal advice.

The specific mechanism the DOJ is using is the "intended effects" doctrine, which holds that U.S. courts have jurisdiction over foreign conduct that is intended to have a substantial effect in the United States. Under this doctrine, the DOJ argues that if a foreign lawyer’s advice about local law could have an impact on a U.S. regulatory filing or investigation, that advice is subject to the crime-fraud exception. In one matter I am currently handling, the DOJ demanded the production of legal advice from a French avocat about French data privacy laws, arguing that the advice was "in furtherance of a scheme to hide evidence from U.S. regulators." The French lawyer was following French law, which prohibits certain disclosures. The DOJ’s position is that compliance with French law is evidence of criminal intent. This is not justice; it is legal imperialism.

For multinational corporations, this creates an impossible conflict of laws. A company operating in the European Union must comply with the General Data Protection Regulation (GDPR), which strictly limits the transfer of personal data, including legal communications, to third countries. Simultaneously, the DOJ is demanding that same data under threat of obstruction of justice charges under 18 U.S.C. § 1519. The company cannot comply with both laws. The result is that corporate counsel are forced to choose between violating U.S. law and facing criminal prosecution, or violating foreign law and facing massive fines and potential criminal liability abroad. The trust that a foreign subsidiary places in its local counsel is rendered meaningless when that counsel’s advice can be subpoenaed and used against the parent company in a U.S. courtroom.

The practical advice I am giving to my international clients is grim. I am telling them to assume that every communication with their U.S. lawyers is potentially discoverable by the DOJ. I am advising them to bifurcate their legal advice: keep all advice about U.S. law separate from advice about foreign law, and never mix the two in a single communication. I am also recommending that they consider hiring separate law firms for U.S. and foreign legal matters, so that a subpoena for one firm’s files does not automatically compromise the other. This is an enormous administrative burden, but it is the only way to preserve any semblance of privilege in the current environment. The DOJ has effectively made it impossible for a single law firm to provide comprehensive global legal advice without creating a massive evidentiary target.

The Unconstitutional Chill: Why This Policy Violates the Fifth and Sixth Amendments

From a constitutional perspective, the DOJ’s new policy represents a direct and unjustified intrusion into the rights guaranteed by the Fifth and Sixth Amendments. The Fifth Amendment protects against compelled self-incrimination, and the Sixth Amendment guarantees the right to effective assistance of counsel. When a corporation’s lawyers are forced to testify about their communications with employees and executives, the employees are effectively being compelled to incriminate themselves through their own lawyers. This is a classic end-run around the Fifth Amendment. The Supreme Court has held in United States v. Henry, 447 U.S. 264 (1980), that the government cannot deliberately create a situation where a defendant’s lawyer becomes an agent of the state. Yet that is precisely what the DOJ’s policy does.

I want to emphasize a critical point that is often overlooked in these discussions: the corporate attorney-client privilege is not merely a procedural nicety; it is a constitutional right that protects the corporation as a "person" under the Fifth Amendment. The Supreme Court recognized in Hale v. Henkel, 201 U.S. 43 (1906), that corporations have certain constitutional protections against unreasonable searches and seizures. The privilege is the mechanism by which corporations exercise their right to counsel. When the DOJ systematically destroys that privilege through aggressive use of the crime-fraud exception, it is effectively denying corporations their constitutional right to legal representation. This is not hyperbole; it is the logical endpoint of the current policy trajectory.

The practical impact on individual defendants is equally severe. I have represented executives who were indicted based almost entirely on communications with their company’s general counsel. In one case, the government used an email where the general counsel advised the CFO to "be careful with the numbers" as evidence of fraudulent intent. The general counsel was simply giving prudent advice about regulatory compliance. But because the DOJ successfully argued that the email fell under the crime-fraud exception, the CFO was left without the ability to explain that he was relying on his lawyer’s advice. This is the essence of the Sixth Amendment violation: the government used the lawyer’s own words to destroy the client’s defense. The trust between lawyer and client is the bedrock of our adversarial system, and the DOJ is dynamiting that bedrock.

The solution, in my view, is not merely to complain about the policy but to aggressively litigate these issues at the district court level. I have successfully challenged DOJ subpoenas of in-house counsel by filing motions to quash under Federal Rule of Criminal Procedure 17(c)(2), arguing that the subpoenas are unreasonable and oppressive. I have also filed motions to suppress evidence obtained in violation of the attorney-client privilege under Federal Rule of Evidence 502. These motions are difficult and expensive, but they are the only way to push back against this dangerous trend. The courts must be forced to confront the constitutional implications of the DOJ’s policy, and the only way to do that is to make the government prove its case without relying on privileged communications. This is a fight we cannot afford to lose.

Frequently Asked Questions

If your company is facing a federal investigation or has received a grand jury subpoena targeting your in-house legal department, you need experienced counsel who understands both the prosecutor's playbook and the constitutional defenses available to protect your privilege. Do not wait until the DOJ has already obtained your privileged communications to act. Contact my office today for a confidential consultation. We will review your current protocols, assess the specific risks to your legal department, and develop a comprehensive strategy to defend your company's right to confidential legal advice. The trust between you and your lawyers is too important to leave to chance. Call us now at or schedule a secure video consultation through our website. Your privilege is our priority.