ERIC Number: EJ793503
Record Type: Journal
Publication Date: 2008
Reference Count: 9
Waiver Culture: The Unintended Consequence of Ethics Compliance
Genova, Gina L.
Business Communication Quarterly, v71 n1 p92-95 2008
The passage of the U.S. Sarbanes-Oxley Act (2002) spawned a series of compliance and ethics programs --the revised Principles of Federal Prosecution of Business Organizations known as the Thompson Memo (Thompson, 2003), the revised Federal Sentencing Guidelines that included the Effective Compliance and Ethics Program and the corporate "culpability score" (U.S. Sentencing Commission, 2004), and another revision of the Principles of Federal Prosecution of Business Organizations now known as the McNulty Memo (McNulty, 2006). These programs were meant to shift business toward an "organizational culture that encourages ethical conduct and a commitment to compliance with the law." These developments spurred human resource departments and legal counsel to draft new workplace policies to embrace, implement, and monitor compliance programs. The McNulty Memo and Federal Sentencing Guidelines, however, lacked a clear definition of an organization's "cooperation" and whether a lack of cooperation could be viewed as obstruction of justice and thereby increase punishment of that organization. In this void, organizations being investigated would submit to prosecutorial pressures to turn over protected documents under the auspices of "cooperation." Cooperation, and thus leniency, became defined by how quickly an organization would waive one of the most revered protections of America's justice system: the attorney-client privilege. In this "culture of waiver," attorneys are forewarning employees and board members that anything said will be disclosed to investigators as part of the company's "cooperative" strategy. The author contends that this is a rather strange result of a program designed to encourage ethical business practices.
Descriptors: Compliance (Legal), Ethics, Cooperation, Lawyers, Confidentiality, Interpersonal Communication
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Publication Type: Journal Articles; Reports - Descriptive
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