March 2, 2011
Opening Session - ABA White Collar Crime Conference - Back to Basics
The opening session titled, Fundamentals of White Collar Investigations, had each panelist providing some pointers on the white collar criminal practice. Moderating was Jodi L. Avergun. The first speaker, Hon. Melinda Haag - US Attorney in San Francisco, opened by telling what folks who are newer to the practice do that irritate them - in other words their pet peeves:
The culture in criminal practice is very civil (not necessarily true of the civil side). There is no need for a lack of professionalism, and no need for sharp practices - the nastiness isn't necessary.
Be conscious of obstruction of justice. When agents are executing a search warrant the US Attys Office they may get a call from counsel saying claiming to represent everyone in the company. Think about the conflict issues. She said that calling us up and telling us you represent the world doesn't go well with them.
We don't like when the attorney tells everyone not to cooperate with us - safer to tell them what their rights are.
Failing to produce something to us and it comes out later that this was a conscious decision can have ramifications.
Criminal defense lawyers who get in the way when there is a search warrant is a problem.
Lack of respect for the government and the power that they have.
Making unfounded allegations of prosecutorial misconduct - the phrase is being thrown around too lightly.
Don't come in too soon to speak to the US Attorney's Office - be skeptical of what your client is telling you
The second speaker, David Gerger offered "A Pep Talk for Going the Distance":
- Many times we look at the same facts and see different things - the agents see the evil intent and you may see a reason for the conduct - you look for the good as defense counsel
- Start out fighting and having respect and compassion for your client
- Your credibility with the prosecutor is critical
The third speaker, Matthew W. Friedrich, spoke on Can a Civil Litigator be a White Collar Criminal Defense Attorney? Key Differences -
- There are differences between civil and criminal practice - for one the balance of power; on the civil side they can take depositions and it is a long rode - with criminal things it can be quick - things can happen fast and not be subject to delay (you may need to address cooperation immediately); third party discovery requires specificity - this can be difficult to articulate; in civil cases tort victims win 50% of the time - that is not the case in criminal matters
- He agreed that the criminal side is more collegial than the civil side
The fourth speaker, David B. Pitofsky, spoke on Managing Client Expectations and Other Client Relationship Issues in White Collar Cases-
- You have a confused scared individual; you need to build trust but also have to have skepticism as to what they are saying - he tries to be enthusiastically agnostic
- Explain the process and ask questions - you are trying to learn
- You need to gain the client's trust; as the relationship evolves you can ask the more pointed questions
- Put the words in the mouths of the judge or prosecutor - e.g., I am not sure the prosecutor will understand the email in which you say you are destroying documents
- Manage expectations - but after you get the trust - you need to prepare them for what might happen
- If you say you will get bail and then don't, and haven't prepared the client - you're likely to get fired
- Whatever you think the retainer should be - double it - plan for the unexpected
The panel then moved to a hypothetical. Some of the topics discussed were whether it was a conflict to represent multiple clients in a company, how to handle a search, what is the client's status (target, subject, witness), should the witness receive immunity, should there be a proffer and by who, and also how districts may operate differently.
This was a two hour panel - but it moved extremely quickly - and the panelists did a wonderful job of covering a lot of ground.
(esp) (blogging from San Diego)
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