Saturday, March 7, 2009
Some refer to the ABA White Collar Crime Conference as the AUSA's reunion, as one finds an extremely large crowd of people who used to work in various US Attorney's offices. Although I only had the pleasure of staying for one day at this conference, it clearly was a rich program covering truly hot topics and hopefully topics that remain in the news as DOJ cracks down on white collar criminality.
I had the pleasure of being on a panel titled, Ethical Issues in White Collar Cases. The moderator, Jane W. Moscowitz led us through a discussion of some of the key issues that are facing defense counsel. Joshua Hochberg talked about a scenario coming from the Refco case in which an outside counsel was facing criminal charges. The panel (in addition to Jane Moscowitz, Joshua Hochberg, and myself, the panelists were Brain J. Hennigan and Earl Silbert) talked about the line between criminal, malpractice, disciplinary, and legal advice to a client that would not be subject to scrutiny. How far was counsel required to investigate the activities of his or her client was a key focus of the discussion. Other topics covered included opinion letters, noting how Ben Kuehne (for background see here) was charged with crimes for writing an opinion letter. Two statutes were mentioned - the obstruction of justice and money laundering statutes in which Congress explicitly provided an exception for attorneys providing legal services.
The panel also discussed noisy withdrawals. One question that one always has to determine in corporate-employee situations is "who" is the client and has the employee been made aware of who counsel is representing. Upjohn "warnings" were referenced here, with discussion of what counsel should say to the employee when representing the corporation. It was a lively panel and looking out at the audience it was good to see a full house and more importantly that individuals were not leaving the room. For the unbiased view of this panel discussion, check out Solomon Wisenberg's comments on Letter of Apology here.
As a post script to this panel -Perhaps making ethical issues into criminal issues for counsel is something that the new DOJ needs to rethink.
(esp)(blogging back in Gulfport, Florida)
Addendum - See Steve Levin, Fraud With Peril, Steve’s Fresh Perspective (discussing health care fraud seminar)