The Yates Memo: Looking for "individual accountability" in all the wrong places

The Department of Justice has received a great deal of criticism for its failure to prosecute both corporations and individuals involved in corporate fraud. In an effort to quiet some of that criticism, on September 9, 2015, then Deputy Attorney General Sally Q. Yates issued a policy entitled, "Individual Accountability for Corporate Wrongdoing," or the "Yates Memo," as it has been called. The main thrust of the Yates Memo is that in order for a corporation to receive any credit for cooperating with the government and obtain leniency in the form of a deferred prosecution agreement, the corporation must not only conduct an internal investigation and turn over the results, but it must also point the finger at culpable employees. The Yates Memo puts a particular emphasis on the need to hold high-level officials responsible for misconduct. This Article argues that the Yates Memo is a misguided attempt to further put law enforcement responsibilities on the backs of corporations rather than the Department of Justice. In addition, the Yates Memo jeopardizes the corporation's ability to conduct effective internal investigations into corporate wrongdoing because it threatens both the corporate attorney-client privilege and the relationship between employers and employees. This Article maintains that if the Department of Justice truly wants to find "individual accountability," it must stop relying on corporations and conduct its own investigations. Furthermore, if the Department of Justice wants to obtain criminal convictions of high-level executives, there may be a need for new legislation that holds high-level executives accountable for the criminal misdeeds of their subordinates.