Saturday, March 3, 2012

2012 ABA White Collar Crime Conference - Ethics

The 2012 ABA White Collar Crime Conference had two ethics panels. The first, Top Ten Reasons You’ll Wish You Had Become a Trusts & Estates Lawyer: Ethical Pitfalls and Blunders in White Collar Practice, was moderated by Professor Bruce Green (Fordham). On this panel was Helen Gredd, Daniel R. Alonso, Evan A. Jenness, and Laura Ariane Miller. Professor Green skillfully walked the panel through a hypothetical that included a host of ethical problems. The panelists did not agree on everything - which is so common when discussing ethics issues. One thing was very clear - the white collar practice comes with many ethics dilemmas and defense counsel has to consider these issues throughout all facets of the case.

The second ethics panel also emphasized the difficulty for white collar practitioners, the title of the program being the Prosecution of Attorneys in Connection With Providing Legal Advice. This panel was moderated by Morris "Sandy" Weinberg, Jr., with the panelists discussing the prosecution of the associate general counsel of GlaxoSmithKline.

Sara M. Bloom started the discussion of the Lauren Stevens case by saying that this was not a case about a discovery dispute. This, she said, was a case of statements that were made to the government. Reid H. Weingarten , in response, emphasized how his client’s actions were not criminal. It was clear that Lauren Stevens was a strong enforcer at the company and that she was well-respected as being ethical. Further, she hired well-respected outside counsel. The question was - what more, if anything, could she have done.

Hon. Roger W. Titus noted that this was the only Rule 29 he has ever granted. He said that he talked to jury after this and they were pleased with the decision. He said, no one expressed concern about it being taken away from them – they just could not understand the prosecution.

Sandy Weinberg turned the tables around on this case to discuss prosecutors who fail to turn over Brady material - he asked - is it any different from what was being alleged here? Mary Patrice Brown, from the Department of Justice, said prosecutors must self report when there is a finding of a discovery violation. One hopes that others in DOJ will take her position - unless someone is going to die – give them the evidence. She noted that it can boil down to the "intent" – and reasonable minds can differ as to what the difference is with respect to intent. In this regard she said that attorneys are treated the same as any other person, although she did note that the DOJ Manual requires approvals for prosecuting an attorney (9-2.032).

Carl D. Liggio, Sr., a general counsel for 22 years, pointed out the huge challenges today for general counsel, with so many new law and regulations. You don’t know all that you need to know, he said. He told how he outlines all the negatives more forcefully then the positives and explains how it is not prudent for them to take risks. He said when it is blatantly illegal you need to put your foot down. He expressed concern that general counsel are facing reduced budgets. But he stressed the importance of supporting good valuable employees. "If you don’t support your people you have long term problems." He noted that when he accompanies someone to the SEC, he reminds the government that they too could be liable under 1001 for being misleading.

In response to Reid Weingarten’s comment that a proffer can make it difficult to put a client on the witness stand, Sara Bloom said that prosecutors who meet the person can find it much harder to prosecute the person.

(esp)(blogging from Miami)

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