CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, October 29, 2005

"Business is Booming for White Collar Criminal Defense Bar"

From (The National Law Journal): "Business is booming for the white-collar criminal defense bar. Corporate officials -- both the legitimately worried as well as the unnecessarily paranoid -- see themselves as possible criminal targets and are lawyering up. What's spurring this significant ramp-up in corporate defense work? A major shift in the federal government's approach to corporate crime, says one white-collar criminal defense lawyer...

It all stems from the government's practice of considering indictments not just against individuals but also against companies, he said. Companies can avoid or defer prosecution by handing over to the government any findings from their internal investigations or implicating wrongdoers. That Justice Department policy was in effect earlier but was underscored in 2003 in the so-called Thompson memo, issued by then-Deputy Attorney General Larry D. Thompson...

In theory, creating conflicts between a company and its allegedly criminal officials helps the government get to the facts of a case faster. In practice, it has been a boon for defenders. "It's absolutely a criminal defense lawyers' employment initiative," said Stephanie A. Martz, director of the White Collar Crime Project at the National Association of Criminal Defense Lawyers. "Definitely, this is a boom time right now."

Even so, many white-collar defenders decry the Justice Department's cooperation program. "The fact that business is good doesn't mean that it's either pleasant or healthy for the system," said Joseph F. Savage Jr., a former prosecutor and member of the white-collar defense team at Goodwin Procter in Boston.

"When I first started [defense work], the government would go after people, not typically the company," he said. "Now it's a given the company is in the mix."

The Thompson memo says that indicting corporations for wrongdoing "enables the government to address and be a force for positive change of corporate culture, alter corporate behavior, and prevent, discover, and punish white collar crime."  The memo adds that in gauging the extent of a corporation's cooperation, the prosecutor may consider the company's willingness "to identify the culprits within the corporation, including senior executives; to make witnesses available; to disclose the complete results of its internal investigation; and to waive attorney-client and work product protection."...

Prosecutors use cooperation pressure as a "very powerful tool," said Mary Jo White, chairwoman of New York-based Debevoise & Plimpton's 200-plus-lawyer litigation practice... But coercing a company to cooperate by waiving a privilege under threat of indictment is "being asked for too routinely and too often," White said. "Prosecutors shouldn't be saying, 'Waive the privilege or else be indicted.'" Story... [Mark Godsey]

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