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

Panelists:  Robert Trout, Karen Patton Seymour, Reid Weingarten, and Edward Genson

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. 

Quick Overview of the Hypothetical - Alice Adams, the Democrat Maryland Speaker of the House, is also a civil attorney. Her firm Murphy andSchaeffer also has a lobbying practice. Her Chief of Staff Bruce Bannon is an attorney in private practice but has no office. Funhouse hires Murphy and Schaeffer to promote gambling legislation in Maryland. Alice earns a percentage of her law firms fees. She introduces and fast tracks legislation to legalize gambling. In an ethics form regarding outside employment, she discloses Murphy andSchaeffer but does not discuss specific clients. Funhouse CEO also hires Bannon for personal estate planning work and essentially pays him $50,000 for a will. There is a federal and state joint investigation and grand jury subpoenas are issued for records investigating allegations of bribe, theft of honest services, and wire fraud.

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!

(lfr)