A corporation is subject to civil and criminal liability for the misconduct that its officers, employees, and agents committed for its benefit. Federal authorities may prosecute a corporation; its officers, employees, and agents; or both. For a corporation, however, indictment can be fatal. Commentators point to the experience of the Arthur Andersen accounting firm as evidence that some companies cannot survive the mere accusation of criminal wrongdoing, even if they might have been vindicated ultimately. Under most circumstances, corporations and their servants alike enjoy the right to attorney-client privileges and to attorney work product protection in connection with government investigations of possible misconduct. Yet, the Justice Department's federal prosecution policy at one time suggested that a corporation faced an increased risk of prosecution, if it claimed those privileges or if it paid the business-related litigation costs of its officers and employees. The federal courts in at least one circuit have concluded that the manner in which the policy (the so-called Thompson Memorandum) was implemented contravened the dictates of the Fifth and Sixth Amendments. Both Houses held hearings on the matter during the 109 th Congress and the 110 th Congress. The House Judiciary Committee reported out the Attorney-Client Privilege Protection Act of 2007, which the House passed under suspension of the rules on November 13, 2007. Soon thereafter, the Department of Justice announced a revised policy concerning the circumstances under which a corporation's failure to waive its attorney-client privilege might influence the decision to prosecute it. The 110 th Congress concluded without further action, although a related amendment to the Federal Rules of Evidence did pass. Proposals similar to that passed by the House in the 110 th Congress have been introduced in the 111 th Congress, H.R. 4326 (Representative Scott); S. 445 (Senator Specter). At common law, corporations were considered incapable of committing or of being punished for criminal misconduct. That perception has changed, however. Corporate criminal liability is now a matter of legislative choice. And the view of the courts is much the same as it was over a century ago, when the Supreme Court observed: We see no valid objection in law, and every reason in public policy, why the corporation which profits by the transaction, and can only act through its agents and officers, shall be held punishable by fine because of the knowledge and intent of its agents to whom it has intrusted authority to act in the subject-matter of making and fixing rates of transportation, and whose knowledge and purposes may well be attributed to the corporation for which the agents act. While the law should have regard to the rights of all, and to those of corporations no less than to those of individuals, it cannot shut its eyes to the fact that the great majority of business transactions in modern times are conducted through those bodies, and particularly that interstate commerce is almost entirely in their hands, and to give them immunity from all punishment because of the old and exploded doctrine that corporation cannot commit a crime would virtually take away the only means of effectually controlling the subject-matter and correcting the abuses aimed at. New York Central R.R. v. United States , 212 U.S. 481, 495-96 (1909). Both as a general matter and within individual criminal statutes, federal law leaves little doubt when a criminal proscription applies to corporate entities. The Dictionary Act provides that "[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise ... the words 'person' or 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." With this in mind, criminal statutes ordinarily condemn—"whoever," or any "person" who—engages in the misconduct they proscribe. In some instances, the statute goes a step further and supplies an even more expansive crime-specific definition. When a federal criminal statute applies to corporations, the courts have generally said that a corporation is liable for the violations committed for its benefit by its officers, employees, or agents acting, within the apparent scope of their authority, even if the corporation has either generally or specifically prohibited the misconduct in question. Of course, the officers, employees, or agents whose misconduct is imputed to the corporation are usually subject to criminal liability as well. It is a matter of prosecutorial discretion whether to prosecute an apparently culpable corporation, or its apparently culpable agents, employees, and officers, or both the corporation and the individuals through whom it has acted. Because their interests are intertwined, corporations often bear the legal costs of defending their agents, employees, and officers in litigation arising out of conduct within the apparent scope of their employment. The corporation in such cases, however, is generally entitled to reimbursement should its agent, officer or employee be convicted or otherwise found at fault. The attorney-client privilege and work product protection are federal evidentiary privileges, which means they are "governed by the principles of the common law as ... interpreted by the courts of the United States in light of reason and experience," F.R.Evid. 501, unless altered by rule or statute. The attorney-client privilege is one of the oldest common law privileges. The purpose of the privilege is to encourage "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice." It protects confidential communications with an attorney made in order to obtain legal advice or assistance. It is available to corporations as well as to individuals. In the case of a corporation, it now seems beyond dispute that the privilege applies to the confidential communications from its officers, agents, and employees to its attorney for the purpose of supplying the corporation with legal advice or assistance. At one time, however, some courts believed the privilege should be limited to the communications of the "control group of the corporation," those ultimately responsible for corporate policy. The Supreme Court in Upjohn found this reading too limited. The case began when officials at Upjohn became concerned that some of its officers or employees might have been involved in the business-related bribery of foreign officials. Upjohn's general counsel was instructed to conduct an investigation. Following the internal investigation, Upjohn reported suspicious payments to the Securities and Exchange Commission (SEC) and the Internal Revenue Service (IRS). The company also identified which of its officers and employees had been interviewed or had submitted responses to questionnaires as part of the internal investigation. Then the IRS issued a summons demanding that Upjohn turn over all its files on the internal investigation including responses to its general counsel's questionnaires and memoranda and to notes of the investigation's interviews conducted under his supervision. Upjohn refused to comply, claiming attorney-client and attorney work product privileges, and the IRS sought judicial enforcement of its summons. The Sixth Circuit Court of Appeals rejected Upjohn's attorney-client claim on the grounds that the communications sought were not those of Upjohn's control group, thus not those of the client, and therefore not privileged. The Supreme Court found this control group test insufficiently protective. The test failed to recognize the importance of the attorney's fact gathering communications with the corporation's employees conducted in order to provide the corporate client with legal advice or assistance. In doing so, it frustrated the very purpose of the privilege by discouraging full and frank disclosures by those associated with the company who were in a position to expose it to civil and criminal liability, thereby denying counsel the basis for sound legal advice and assistance. Moreover, it chilled communications between counsel and company employees designed to ensure company compliance with the law. In a situation like the one in Upjohn , the attorney represents the corporation, the privilege that envelops the communications with the attorney belongs to the corporation, and may be waived by the corporation. Although disclosure ordinarily waives the privilege, the circuits are divided over whether the privilege may survive disclosure for limited selective purposes (selective waiver) such as the disclosures in Upjohn to government investigators or regulators. The prospect of selective waiver was apparently first raised in Diversified Industries v. Meredith , where the Eighth Circuit held voluntary disclosure to the Securities and Exchange Commission (SEC) did not constitute a waiver of the privilege for subsequent purposes. To one extent or another, the District of Columbia, First, Second, Third, Fourth and Tenth Circuits have declined to accept the Eighth Circuit suggestion that the attorney-client privilege may be claimed following a selective disclosure to a governmental agency. The existence of either a common interest or joint defense attorney-client privilege further complicates matters, for either may arise in the course of an investigation of allegations of corporate misconduct. The common interest privilege is created when an attorney simultaneously represents more than one client based on their common interest in the same matter. Under such circumstances, "communications between each of the clients and the attorney are privileged against third parties, and it is unnecessary that there be actual litigation in progress for this privilege to apply." Moreover, two or more clients represented by individual attorneys may agree to work jointly in a common defense of a particular suit or case. In such circumstances, "many courts have held that the attorney-client privilege gives rise to a concomitant 'joint defense privilege' which serves to protect the confidentiality of communications, passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel." The courts have generally held—although not universally so—that communications or attorney work product protected by a joint or common defense privileges can only be waived with the consent of all parties. At least since the Supreme Court announced its decision in Hickman v. Taylor , the federal courts have recognized that an attorney's work product gathered or created in anticipation of litigation enjoys qualified disclosure protection. The protection has been reenforced by rule both on the civil side and in criminal cases. "At its core, the work-product doctrine shelters the mental processes of the attorney providing a privileged area within which he can analyze and prepare his client's case.... It is therefore necessary that the doctrine protect material prepared by agents of the attorney as well as those prepared by the attorney himself."