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October 1, 2009
NACDL's 5th Annual Defending the White Collar Case Seminar - "Pay to Play - The Current Wave of Public Corruption Cases," Thursday, October 1, 2009
Guest Blogger: Linda Friedman Ramirez, P.A. (Tampa St. Petersburg, FL)
Panel Moderator: Abbe David Lowell
NACDL's 5th Annual White Collar Crime Conference kicked off today with the Pay to Play
panelists jumping into a thorough discussion of the key issues in the
defense of a public corruption case via a hypothetical created by panel
moderator Abbe Lowell.
The panel agreed that attorneys are needed for all individuals and
entities subpoenaed. The first question is whether joint defense
agreements are more problematic than helpful. There seemed to be a
consensus that there might be some benefits, particularly when working
with attorneys with whom there has been no prior experience or quirky
clients, but most panelists expressed reservations about their use.
Next up - the panelists discussed the subpoena for records relating
to the legislative process and the Speech and Debate privilege. Who
asserts? The panel propounded on the importance of collaboration
between the attorney for Alice and the attorney for House. Also, how to
handle keeping back documents that may be privileged and the concept of
using a privilege log? TheDOJ’s view of the Speech and Debate clause is in a great deal of flux, and DOJ’s view has changed radically. Further, if it is a federal subpoena does this change anything? And how does the counsel for Funhouse
handle its own subpoena? The four panelists explored the issues
relevant to subpoenas for contribution records and the intersection
with the First Amendment.
Another important issue for practitioners is how to respond to precharge or pretrial publicity in high profile cases, including responding to questions by investigative reporters. Clients often have a strong desire to speak to the public. Different responses from the panelists: give clients a limited script; have the attorney act as spokesperson -- though that raises the concern for attorneys of moving into the realm of public relations; hiring surrogates.
Also, what happens if a client wants to make his case to the prosecutor? Is this a good strategy? Of course the most important issues are whether the facts are sufficient for a prosecution pursuant to 18 U.S.C. 1346? Is conflict of interest + non-disclosure enough under this statute? This was the meat of the panel and the discussion was exciting and demonstrated the knowledge of the panel. Also, Moderator Abbe Lowell injected into the discussion 18 U.S.C. 666, which is the jurisdictional statute for prosecution of offenses committed by state public officials and the requirement of a connection with the receipt of federal funds 18 U.S.C 666 (b).
By the close of the panel it was clear that an hour and a half was not nearly enough time to explore this topic!
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