Saturday, November 12, 2011
The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.
More Information and to registrar here
Faculty (which includes 6 past-presidents of NACDL) here.
Stetson University College of Law
1401 61st St. S.
Gulfport, FL 33707
Tradewinds Island Grand Beach Resort
5500 Gulf Boulevard
St. Pete Beach, FL 33706
Friday, November 4, 2011
The Sixth Annual ABA National Institute on Securities Fraud is taking place in New Orleans, and a topic this morning was social media. Yes, social media is a compenent even of securities cases.
Philip Hilder is moderating a panel of Robert B. Hirschhorn, Eric Dezenhall, Carrie Johnson, and Kara Scannell. Robert Hirschhorn noted how we now have information savvy jurors. Eric Dezenhall noted that "if you put a freelance writer on the jury, you should expect them to blog." Carrie Johnson noted how facebook may be used by reporters, and she gave the example of how it was used for a story following events at Virginia Tech. The panel stressed the speed of communication today and how one can receive information quicker than previously, for example via Twitter.
(esp)(blogging from New Orleans)
Saturday, September 3, 2011
NACDL, 7th Annual Defending the White Collar Case, September 22-23, 2011, NYC
ABA, Foreign Corrupt Practices Act 2011, October 27-28, 2011, DC
ABA, Sixth Annual National Institute on Securities Fraud, Nov. 3-4, 2011, New Orleans
Sunday, August 21, 2011
Last Call - Sept. 1 Deadline - Call for Roundtable Workshop Submissions: Reducing Reliance on Incarceration
Call for Roundtable Workshop Submissions: Reducing Reliance on Incarceration
On Oct. 27-28, 2011, the ABA and the AALS will present a joint conference, Reducing Reliance on Incarceration, at the Liaison Capitol Hill Hotel in Washington, D.C. The first event of the conference, on the afternoon of Thursday Oct. 27th, is a workshop for scholarly papers relating to the conference theme. Participants will present their work in a roundtable format. Abstracts or drafts will be shared among presenters and discussants in advance of the workshop. Workshop presenters must commit to attending both days of the conference, which will include a plenary and multiple break-out sessions on the topic of reducing reliance on incarceration. For a description of the program, please visit here Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee. To apply to workshop a paper, please email an abstract of 500 words to both firstname.lastname@example.org and email@example.com by Sept. 1, 2011. Space is limited and presenters will be chosen by members of the organizing committee.
Sunday, August 7, 2011
NACDL, 7th Annual Defending the White Collar Case, September 22-23, 2011, NYC
ABA, Foreign Corrupt Practices Act 2011, October 27-28, 2011, DC
ABA, Sixth Annual National Institute on Securities Fraud, Nov. 3-4, 2011, New Orleans
Monday, July 11, 2011
On Oct. 27-28, 2011, the ABA and the AALS will present a joint conference, Reducing Reliance on Incarceration, at the Liaison Capitol Hill Hotel in Washington, D.C. The first event of the conference, on the afternoon of Thursday Oct. 27th, is a workshop for scholarly papers relating to the conference theme. Participants will present their work in a roundtable format. Abstracts or drafts will be shared among presenters and discussants in advance of the workshop. Workshop presenters must commit to attending both days of the conference, which will include a plenary and multiple break-out sessions on the topic of reducing reliance on incarceration. For a description of the program, please visit http://www.americanbar.org/content/dam/aba/events/criminal_justice/2011colloquium.authcheckdam.pdf. Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee. To apply to workshop a paper, please email an abstract of 500 words to both firstname.lastname@example.org and email@example.com by Sept. 1, 2011. Space is limited and presenters will be chosen by members of the organizing committee.
Friday, June 17, 2011
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “From Push to Shove: Defending Against Higher Sentences,” Friday, June 17, 2011
Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)
The seminar closed with a discussion of sentencing strategies. Moderated by Jeffery Robinson, the panel consisted of David Angeli, Ellen Brotman, U.S. District Court Judge Robert T. Dawson, Vito de la Cruz, and Jan Nielsen Little.
Mr. de la Cruz started the discussion by suggesting that because the guidelines still carry considerable weight, plea agreements should (where possible) be negotiated to impose a statutory cap on the possible penalty. With regard to the guidelines, Mr. de la Cruz discussed looking at the way in which the guideline was drafted. If the guideline was not based upon a Sentencing Commission study and empirical evidence, the case law is clear that the district court can reject the guideline based upon policy alone.
Ms. Brotman seconded those comments, and noted the excellent resources made available by federal defender offices to assist in analyzing whether the guideline at issue may be subject to challenge on this basis.
Judge Dawson noted the reason behind the guidelines was to establish some sense of fairness between sentences, but were intended to be recommendations only. Post-Booker, the “real work” at sentencing is with regard to variances.
Mr. Angeli suggested that the “deconstructing the guidelines” approach may be effective with regard to 2B1.1 guidelines, because those guidelines have not evolved due to careful Sentencing Commission study. Ms. Brotman followed up by noting that this kind of attack should be supported by empirical evidence in favor of the sentence that is being sought, rather than just relying on omissions by the Sentencing Commission. She additionally noted that the initial research upon which the guidelines were based was flawed, because it only included defendants who were sentenced to prison.
Mr. Angeli discussed Pepper v. U.S., a Supreme Court case which held that post-1st-sentencing, pre-re-sentencing rehabilitative efforts can be taken into consideration. He noted that the Court held that the sentencing guideline which did not make good policy sense could and should be disregarded. The holding in Pepper suggests that a number of other policy statements are now subject to challenge.
Ms. Little noted that the Sentencing Commission has compiled a huge variety of statistics, available on their website, which can be used to make arguments for lenience. For example, she noted that statistics supporting a relatively high frequency of variances with regard to similarly situated defendants can be cited to request a similar variance. Ms. Brotman suggested that the Sentencing Commission can remain relevant by making this information even more readily available.
Ms. Brotman discussed the application of the four purposes of sentencing listed in 18 U.S.C. 3553 apply to white collar cases. The negative use of the same factors by the government was discussed by Mr. Robinson and Ms. Little.
Ms. Brotman discussed the Ninth Circuit’s review of white collar sentences, and noted with concern that a number of the Judges have expressed that discretion in white collar cases should be reined in because Judges are more inclined to be sympathetic to white collar defendants because they are more likely to actually be similar to them with respect to their background.
The panel noted (with audience agreement) that Assistant United States Attorneys are almost uniformly asking for guideline sentences. Ms. Brotman noted that this rigid policy often eliminates them from the discussion regarding the appropriate sentence.
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Defending the Individual in FCPA Cases: Managing the Company, Dealing with the Facts,” Friday, June 17, 2011
Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)
This panel dealt with a hypothetical company which had a deferred prosecution agreement with SEC/DOJ involving small value facilitation payments which were actually bribes. The hypothetical involves an email sent to the company’s auditing committee by a sales agent in Egypt alleging the bribes are taking place.
Following the disclosure to the audit committee, outside counsel is retained, and (due to the deferred prosecution agreement) DOJ/SEC needs to be informed of the situation.
Mr. Rhodes indicated that the company should retain counsel for the whistleblower in response to hypothetical questions involving that individual’s exposure and rights.
Ms. Andrues, acting as counsel for the hypothetical whistleblower, reviewed the information she would want to have access to, and the potential issues she would need to address, including the relevant law in the foreign country (Egypt) that could impact the investigation.
Mr. Knox indicated that he (acting as hypothetical prosecutor) would potentially provide background information to counsel for the whistleblower. However, both Ms. Andrues and Ms. Davis (acting as hypothetical whistleblower counsel) indicated that it was unlikely they would contact the prosecutor, although both indicated that the call could be useful to obtain the lay of the land.
Mr. Rochon proposed a one-way flow of information from company counsel to counsel for the whistleblower as a way to get the attorney up to speed without compromising company’s counsel’s ability to remain as counsel in the event the whistleblower ends up cooperating with the government.
Another employee, an accountant, also needs counsel, and has given statements indicating involvement and potential additional exposure. The panel agreed that counsel for that individual might not allow an interview of that client, although the employee will almost certainly be terminated. Ms. Davis indicated that he may be facing termination even after an interview. The panel agreed that if the accountant still wanted to go forward with the interview, he should be thoroughly advised regarding the risks. However, the panel expressed significant doubts that the company would facilitate investigation.
Another hypothetical client was then discussed: in-house counsel who failed to act on the whistleblower’s initial complaints and who’s (at a minimum) negligence appears to have led to this problem. Because this hypothetical client’s version of the events was unsupported by documents or other witnesses, the panel agreed that this individual would clearly not be allowed to be interviewed by anyone, regardless of employment consequences.
During these exchanges, it was repeatedly discussed that the company’s agreement with DOJ/SEC required them to disclose information it discovered, and that this factored into every decision regarding allowing the various clients to be interviewed.
Mr. Rhodes commented regarding employment futures of these individuals. All appear to be unlikely to remain with the company, but the in-house counsel is most likely to be fired immediately. The accountant was deemed likely to be terminated after another interview. The tension between the interests of the company and the individual appeared especially intense in this scenario.
With regard to interview requests by DOJ/SEC, Ms. Andrues and Ms. Davis expressed skepticism regarding the amount of protection and value of proffer letters. In the event that the interviews were to take place, and a recording was required and defense counsel was not going to be given a copy, it was unlikely that the interview would occur. Mr. Knox noted that admissions by officers during interviews would be considered admissions by the company.
In response to a comment from the audience regarding the dangers of conducting investigations in foreign countries, Mr. Rhodes and Mr. Rochon agreed that local legal issues will always influence investigations and should be carefully considered.
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – Keynote Address: Benedict P. Kuehne, Friday, June 17, 2011
Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)
The Keynote Presentation, "Standing Tall: Criminal Defense Lawyers as Constitutional First Responder s in Today’s War on Crime," was given by Benedict P. Kuehne.
Benedict Kuehne spoke regarding the important role that criminal defense attorneys play in America. He noted that criminal defense lawyers often put at risk not only their fee, but their own liberty. Because the role of criminal defense lawyers is to safeguard our constitutional rights, that role itself is threatened. Mr. Kuehne used his personal story to examine these principles. In 2004, his office was searched pursuant to a federal warrant. He was the subject of a grand jury investigation into conspiracy and money laundering. His alleged crime related to legal advice he provided another criminal defense lawyer regarding the source of his fee.
This prosecution was part of an overall trend towards the broadening of the scope of money laundering prosecutions, Mr. Kuehne suggested, noting that money laundering has replaced conspiracy as the prosecution’s weapon of choice.
Mr. Kuehne noted that this prosecution theory threatened to chill the assertion of the Sixth Amendment right to counsel and the willingness of counsel to provide legal representation to individuals facing prosecution.
Mr. Kuehne then explored the history of litigation surrounding the specific statutory exemption for criminal defense fees. For 20 years, the government persisted in attempts to convince courts that the exemption did not mean what it said. These efforts, combined with the ability to seek forfeiture of fees, had a chilling effect on that Sixth Amendment right.
His case resulted in the decision U.S. v. Velez, vindicating the criminal defense fees exemption in money laundering cases. Mr. Kuehne's story is an inspiring one that clearly demonstrates the importance of the work that we defense lawyers do everyday.
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Nowhere to Run, Nowhere to Hide: Antitrust Defense in the Age of Amnesty Agreements & Corporate Self-Reporting,” Friday, June 17, 2011
The morning of day two of the seminar concluded with a panel discussion of the current issues facing antitrust defense practitioners. The panel consisted of Richard H. Deane, Jr., David Gerger, Eric Grannon, Christine Levin, and Jessica K. Nall.
Ms. Levin began by referencing the concerns expressed yesterday regarding the trend towards cooperation by corporate counsel. She indicated this has been driven, in part, by the Anti-trust Division’s amnesty program and DOJ’s aggressive marketing thereof. She reviewed the requirements of eligibility for the amnesty program: first to approach DOJ; prompt and effective action to terminate the wrongful conduct; full, continuing and complete cooperation; it must be “a true corporate act”; restitution must be made if possible; the company cannot have been the architect of the scheme, and cannot have coerced the others.
The benefits of the amnesty program include: the company receives complete protection from fines; no jail or fines for employees; no joint and several liability exposure in the subsequent civil actions; and no treble damages. Potential pitfalls include the following: the agreement only binds the Antitrust Division; a failed application, which can result in a prosecution using the information provided during the application process; “Amnesty Plus”, a program giving a break to companies which are not first in reporting to DOJ if the company reports additional violations, but which can lead to new grand jury investigations; and the use of amnesty as an anticompetitive tool, i.e., a way to cause headaches or worse for a company’s competition.
Mr. Gergen noted pending litigation in which the government has asserted that an employee may not seek to enforce the amnesty agreement.
To facilitate discussion of these problems and how they apply in real-world settings, the panel reviewed a number of cases in which a successful defense was mounted against leniency application prosecution.
Mr. Deane compared antitrust defense to white collar defense generally. He analogized the amnesty program to “proffering” in other white collar cases, noting the differences – particularly as it results in tension between the goals of corporate counsel and the interests of the individuals involved, and the potential conflict between such goals and a joint defense agreement.
Ms. Nall discussed endgame negotiation strategies. She noted that positioning a client is very fact-specific, but some general principles do apply. For example, cooperation is always viewed favorably by the government. She cautioned that DOJ views with great disfavor the argument that a defendant should be treated with leniency because the defendant is foreign and doesn’t understand or isn’t familiar with American antitrust laws. Legal arguments (regarding jurisdiction, for example) may also be strong bargaining chips. Mr. Grannon suggested jurisdiction may provide a defense at trial as well.
Mr. Grannon also discussed the decision making process involved in evaluating a plea offer. These decisions often take place after a company has received amnesty, your client’s company has pled guilty, and your client has been left as a “carve-out.” Mr. Grannon presented data on sentences for defendants, comparing different kinds of defendants and providing examples from specific cases. He noted that DOJ indicates that “no jail” pleas are no longer an option. He noted one particularly troubling DOJ strategy as follows: DOJ has a Memorandum of Understanding with Immigration, indicating that Sherman Act violations are crimes of moral turpitude – which results in deportation and exclusion for 15 years. This agreement exists despite a strong argument that it is not a crime of moral turpitude as that term is commonly defined. DOJ will use this threat as a bargaining chip, agreeing to waive the application of the Memorandum of Understanding it has with Immigration in exchange for a plea of guilty.
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Monsanto and More: Ethical Tactics for Getting Paid When the Government Gets There First,” Friday, June 17, 2011
John Cline began the discussion with a hypo of an indicted individual who has millions of dollars that the government believes were garnered through criminal activity. Mr. Welk presented the government’s perspective and outlined the steps taken to identify the assets the government believes can be tied to the charged crimes. Typically this involves going to the Magistrate and obtaining seizure warrants for assets and then seizing them. If it involves real property, then they will go get a lis pendens.
Mr. Cline asked about ex parte restraining orders and when and how the government uses them. Mr. Welk explained that once he obtains the restraining order, he will typically approach the counsel for the client, inform them of the order, and then set up a plan. Typically the parties sit down and work out the issues together. Mr. Welk noted that going in ex parte can be extremely disruptive to the business and that is why the defense is willing to sit down. However, there is always a concern that the assets could disappear if the government does not come in strong.
Mr. Cline then sought the defense perspective from Ms. McNamara—what steps she takes when faced with an ex parte restraining order. She would first seek out help from an experienced forfeiture lawyer. This is because this process is quite draconian and it allows the government to basically step into the defendant’s shoes. However, given the practicality of the temporary restraining order, where the government must show its cards, the parties are usually willing to come to the table and talk.
A member of the audience asked about money that the lawyer already has, such as a retainer. Mr. Welk explained that there is a wide diversity of views on how to handle this situation. He will typically sit down with the attorney and work out an arrangement, typically involving a return of a portion of the money.
Ms. McNamara noted that there has been an uptick in asset forfeiture since the Madoff case but Mr. Welk noted that it was really a coincidence of timing. Rather, he noted that the uptick was a product of at least five years of work by the Asset Forfeiture Working Group. It just happened that their work aligned with the Madoff case.
Mr. Cline then asked the panelists to discuss negotiations that frequently happen in order to avoid an evidentiary hearing. Both parties usually go in hoping to cut a deal and come out with a clear plan. Ms. McNamara explained that the government typically comes in with a pragmatic approach, but that is not always the case.
The panelists engaged with the audience on the interaction between bail and forfeiture, the potential conflict for the defense attorney in seeking to protect the client’s assets in general and specific to defense fees, and the question of government authority over third-party assets. Mr. Welk noted that while the government has authority to seize third-party assets, but the courts don’t like that.
Mr. Cline closed the panel with a discussion the potential for prosecutors to clawback fees that have been unfrozen for defense. Mr. Welk said this is rare and there are other venues to explore, one of which is a strongly worded letter to counsel explaining that it is the government’s belief that all the client’s money comes from illegal activity and thus any money accepted may be subject to forfeiture. There is serious debate over the use of these letters, but defense counsel should be aware of them and on the lookout.
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “The Accidental Felon: Challenging The Expansion of the Willful Blindness Doctrine,” Friday, June 17, 2011
One of two breakout sessions, two speakers (Timothy O’Toole and Professor Ellen S. Podgor) reviewed the ever-broadening scope of the willful blindness doctrine and proposed several defenses and counter-attacks to this brutally successful prosecutorial tactic.
The speakers opened by discussing a recent U.S. Supreme Court case, Global-Tech Appliances, Inc. v. SEB S.A. Though this is a patent infringement case, the Court addresses the scope of the criminal law willful blindness doctrine. The Court notes that the instruction has been applied to a wide variety of cases, but sets forth two universal requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact. The Court affirmed, holding there was sufficient evidence that the patent infringer was willfully blind under the criminal law standard.
Professor Podgor began by reviewing U.S. v. Jewell, the Ninth Circuit case most commonly cited as setting forth the law on willful blindness. Professor Podgor noted that Justice (then Judge Kennedy) dissented in the 9th Circuit decision in Jewell, and that he again found himself (this time alone) in the dissent in Global-Tech.
Mr. O’Toole noted that the use of willful blindness in white collar cases (even though it originated in a drug case) is an excellent example of why white collar defense attorneys should not wall themselves off from other areas of criminal defense. With respect to Global-Tech, he noted that the second requirement of “deliberate action” appears to narrow the scope of willful blindness in comparison to existing circuit case law. The Supreme Court itself emphasized this requirement in its analysis, noting that the Federal Circuit was in error in not requiring deliberate action.
Professor Podgor emphasized the strength of the language used by the Supreme Court in this case. Powerful jury instructions can and should be crafted based upon the Global-Tech. Mr. O’Toole seconded these comments, pointing out that the willful blindness doctrine is often relied upon by the government in cases where evidence of deliberate actions is non-existent. He questioned whether any circuit’s pattern instruction remains valid in light of a universal failure to include a requirement of “deliberate actions” to avoid learning of the key fact(s). He also noted that the Supreme Court didn’t merely indicate that recklessness or negligence wasn’t sufficient, but actually set forth the definitions of those two mental states, and suggested that proposed jury instructions should do the same.
One questioner asked whether the improvement in the legal standard was so great that defense counsel should ask for this instruction, to allow focus on the absence of deliberate actions. Both speakers cautioned against it.
Postscript - Mentioned in this session was a wonderful article by Dane C. Ball (Gerger & Clarke) titled, Improving "Willful Blindness" Jury Instructions In Criminal Cases After High Court's Decision in Global-Tech, published in the BNA Criminal Law Reporter. With many thanks to Dane C. Ball and the Criminal Law Reporter for allowing us to post it here - Download BNAinsights.Ball2
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Navigating the Wilderness of Mirrors: National Security Issues for the White Collar Lawyer,” Friday, June 17, 2011
Day two of the seminar started with a discussion of the issues that arise when classified information is implicated in a white collar case. Led by John D. Cline, the panel consisted of Deborah Boardman, Matt Apuzzo (of the Associated Press), Joshua L. Dratel, Ross H. Garber and Nancy Hollander.
John Cline began the discussion by reviewing the Classified Information Procedures Act (“CIPA”) and the Foreign Intelligence Surveillance Act (“FISA”).
Mr. Garber suggested that there are a number of cases in which defense attorneys don’t realize that national security information is implicated. This is for many reasons, including unfamiliarity with the statutes involved and an increasingly aggressive use of FISA and national security related charging decisions by the government. The increased numbers of FISA warrants granted and their revealed use in non-“terrorism” cases (money laundering, export violations, FCPA, among others) were cited in support. Mr. Apuzzo noted that the potential for these issues to arise in cases is often underestimated. The scope of the government’s use of its surveillance powers is constantly increasing.
Mr. Dratel noted that an increasing amount of information has been designated classified, leading to this increase in cases with these issues. Once information is classified, however, a Judge cannot declassify it. There are administrative procedures available, but they are impractical for most cases due to timing. Once classified information is involved, CIPA is going to be the sole avenue of relief. He further noted several examples of the “tactical” use of classification and CIPA by the government, including the use of section 4 of CIPA (which allows the government to submit potentially exculpatory classified material to a Judge for review prior to any disclosure).
Ms. Hollander noted tactical de-classification was also a weapon in the government’s arsenal. She also added that FISA includes more than that wiretapping authority: it includes sneak and peek warrants, email, among other powers. Another hurdle caused by classification arises, she noted, in the context of obtaining security clearances for experts, an additional time-consuming burden imposed in these cases. Deborah Boardman noted that the delay in getting clearances can apply to anyone on the defense team that an attorney wants or needs to have access to classified material in order to effectively defend the client.
Many of these practical problems are best understood by using a case study method. To facilitate that, Ms. Boardman used her recent litigation in U.S. v. Thomas Drake to review these problems and how navigating CIPA enabled her excellent result. Mr. Cline and Ms. Hollander also commented upon the practical problems. The role of Classified Information Security Officers as neutral problem solvers was emphasized. John Cline described them as “the best bunch of problem solvers I have ever run across,” a description with which anyone who has ever dealt with them will readily agree.
Mr. Garber, characterizing these problems as “fun”, described the FISA procedure for challenging the warrant. Unlike traditional search warrant applications, FISA applications are not routinely provided to defense counsel. There is a procedure for requesting the application for the warrant. No such request has ever been granted in 30 years.
Ms. Hollander noted a new problem with FISA warrants: they may continue after indictment. She emphasized that if the FISA information is not going to be used by the government, the existence of the wiretap won’t even be disclosed.
In conclusion, Mr. Apuzzo spoke about the problems of reporting on national security cases. He noted reporters actually have several advantages in understanding these cases. For example, because defense counsel receives only a well-defined set of information, they often miss the larger picture, whereas reporters who work on these cases are often more able to quickly understand the significance of new disclosures. He also indicated that communicating effectively with the media is especially important where a case may have (or appear to have) national security implications. Nancy Hollander emphasized Mr. Apuzzo’s points, emphasizing that a good reporter can often find information that defense could never find.
Thursday, June 16, 2011
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Finding the Line: Ethical Considerations When Contacting and Interviewing Witnesses,” Thursday, June 16, 2011
Day One of the seminar concluded with a panel discussion of the various ethical pitfalls surrounding the interviewing of witnesses. Patrick Robbins moderated the discussion. The panel included Blair G. Brown, David Fechheimer, Nina J. Ginsberg, Marc S. Harris, and Steven Singer.
The panel first discussed hypotheticals involving a lawyer who first represents a company (through an audit committee) under investigation. Ms. Ginsberg pointed out the first potential conflict that lawyers face when interviewing employee witnesses under these circumstances is that the witness’s interests may be adverse to the company client. She further noted that such adverse interests would preclude dual representation as well. She discussed the burdens the model rules place upon lawyers interviewing witnesses. Model Rule 4.3 requires an explanation of the lawyer’s role, prior to interviewing, where the witness may be confused regarding the lawyer’s role, and that this explanation approaches that required by Miranda warnings. As Mr. Brown noted, these warnings are in the interest of the lawyer as well, as they will protect the company and the lawyer from subsequent motion, though he doubted that the warnings ever approach the standard of Miranda. The panel agreed that the overriding goal of representing the company by ferreting out information, and convincing the government that the company is being aggressive in its investigation, runs directly contrary to strong warnings. Marc Harris noted that it was common to demand cooperation from employee witnesses, upon threat of termination.
The panel discussed the problems presented by the question: “Should I get a lawyer?” Everyone agreed that the question required the lawyer to walk a fine line. The lawyer should not give the witness legal advice by opining whether a lawyer is a good idea, but must accurately answer that the witness has the option to get a lawyer.
The next hypothetical involved a lawyer advising an AUSA that he represents all current employees of the corporation and the current and former CFO and CEO, but the AUSA sends the agents to interview the employees. Mr. Brown started his response by cautioning against such blanket assertions of representation unless the facts truly warrant it. He continued by noting that the state ethics rules may provide the best barrier to this kind of conduct. The panel agreed, with Mr. Singer noted that many state ethics rules specifically include corporate employees as represented parties.
Marc Harris noted that another fine line exists when advising all employees of a company that they need not talk to agents, and that flatly advising against it may constitute obstruction of justice. Ms. Ginsberg further cautioned that it created an impression on the part of the employees that they are being represented. Mr. Brown noted that Model Rule 8.4 allows a lawyer to advise a client’s employee not to talk to an adverse party.
One questioner noted that the trend toward “hyper-co-operativity” on the part of companies has only aggravated the problems faced by the employees on the other side of the hypotheticals discussed.
Another questioner asked about government pressure to not interview government witnesses. Mr. Singer commented that such efforts to intimidate the defense must not be allowed to succeed, and discussed taking steps to protect oneself during those scenarios, i.e., having multiple people present for any interviews.
The final hypothetical involved a grand jury witness taking the 5th Amendment privilege to protect another individual and advising the lawyer he was doing so. Mr. Harris indicated that this is not problematic, but, advising a witness to do so might constitute obstruction of justice, especially if that advice was motivated by a desire for financial gain by securing further employment by the corporation at issue.
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Twitter, Facebook & Google in the Courtroom: High Profile Defense in Real Time,” Thursday, June 16, 2011
The seminar opened with a discussion of the intersection between the internet (especially so-called “social media”) and the courtroom. The discussion was moderated by Gail Shifman, and the panel included Leslie R. Caldwell, Rusty Hardin, Dennis P. Riordan, and Allen J. Ruby.
The panel started by discussing cases with intense media scrutiny. High profile cases can arise due to the notoriety of the client, as was the case with Mr. Ruby’s former client Barry Bonds. But as Ms. Shifman noted, any kind of case or defendant can become notorious, as the glare of the media spotlight can be prompted by the facts of the case. The skills discussed can be required by cases in any criminal defense practice.
Mr. Hardin stressed determining early in the case to what extent the client’s reputation in the community is especially important, i.e., a celebrity or politician, and if so, react more proactively in media response. He stressed that the storyline of the case for the media will be set very early, perhaps in the first 36 hours, and will be repeated as the media updates the story.
Mr. Ruby spoke about a client’s concerns when under the spotlight: a strategy that repairs damage to reputation, to the extent possible. The internet has changed the game in many ways, but one is that it never forgets: every news story remains preserved for future searches, making “weathering the storm” less viable of a strategy than in years past.
Mr. Riordan discussed picking potential media outlets to suit your strategy: not every client and case will benefit from a discussion with Nancy Grace or her ilk, but some will. Different kinds of print media and bloggers are well suited to other kinds of cases.
Multiple panelists referenced the Duke rape case as one of the finest examples of excellence in media strategy. The choice of media, themes and messengers were all lauded.
Where reporters are pressing attorneys for comments, but public comments would not be beneficial (i.e., are part of the media strategy), off-the-record or background comments to the press may be useful, either to “hold them at bay” or to begin to influence the media coverage of a case. Where attorneys are gagged not by strategy, but by court order, motions can be drafted to convey the client’s position.
Another point stressed by multiple panelists was that the jury will remember what the lawyers say, and therefore attorneys should be careful before they make specific factual assertions in the press.
The panel discussion turned to specific social media issues. Use of social media research on witnesses or jurors was discussed, and it was noted that the use of third persons to surreptitiously access Facebook pages has been repeatedly characterized as unethical in numerous bar opinions.
Jury control in the age of social media and internet saturation was discussed. All panelists agreed that ordinary jury admonitions on these topics are seemingly “not processed” by jurors: it is simply unfathomable to not use the internet. Suggestions included requesting Facebook and Twitter information from prospective jurors (perhaps being given only to the court), or requesting the strongest possible judicial warnings to jurors.
Sunday, June 12, 2011
Sunday, May 22, 2011
NACDL has a west coast white collar crime conference June 16-17th in beautiful Lake Tahoe, NV, at the luxurious Hyatt Regency Lake Tahoe Resort.
Topics will include:
- Handling the Unique Challenges of High-Profile Defense
- Hot Topics in Criminal Antitrust
- National Security Issues that Arise for the Regular Practitioner
- FCPA Defense
- White Collar Sentencing
- When Your Clients’ Assets are Frozen
- Ethical Considerations of Witness Contact & MoreFor
For more information, see here.
Saturday, May 7, 2011
20th Annual National Seminar on Federal Sentencing Guidelines - Corporate Plea Negotiations and Sentencing
This panel was moderated by Jeff Ifrah (Ifrah Law), with AUSA Arlo Devlin-Brown (SDNY) and Steven Bunnell (O'Melveny & Myers) as speakers. After the typical DOJ disclaimer that he was not speaking on behalf of DOJ, AUSA Devlin-Brown said that monitors are still in use. Monitors, he said, are usually selected by the US Attorney, but getting input in the selection from defense counsel is something done in some cases. The panelists spoke about the lack of attorney-client privilege with the monitor. Steven Bunnell spoke about how expensive monitors can be. One of the items discussed is how the scope of the monitorship is negotiated.
Steven Brunnell noted that corporate plea bargaining is a kind of begging. The corporate reputation is important. Sentencing guidelines are usually not a direct concern. AUSA Devlin-Brown noted how the collateral consequences of charging a corporation, make a difference (I call that the Arthur Andersen effect). As a result both sides try to reach a settlement. He also spoke about the delicate interests of parallel proceedings.
Hypotheticals were used to consider some of the issues. For example, what is the government view of the corporation indemnifying the CEO? How do you deal with employee resistance? One thing was clear from each hypo - the government has a lot of power.
My commentary - One topic discussed during this panel discussion concerned the level of trust between the corporation's attorney and the DOJ. It seemed to make a difference. But I have to ask the academic question -- should the trust between the private attorney and DOJ be a factor in how things progress in a criminal investigation? It is always interesting to see DOJ looking for consistency in sentencing, but then having individual US Attorneys and AUSAs making decisions on different aspects of a case that will be inconsistent based upon the AUSA or the defense attorney handling the matter.
Friday, May 6, 2011
20th Annual National Seminar on Federal Sentencing Guidelines - The Presentence Report and the Sentencing Process
A box lunch was provided with an allstar panel discussion and video. The topic was the presentence report and the sentencing process. Moderating this session was W. Carl Lietz, III (Kish & Lietz). The panelists were Hon. Donna Elm (Federal Public Defender - Middle District of Florida), Laurel Moore Lee (AUSA - Middle District of Florida), Tess Lopez (Sentencing Mitigation Specialist), Ray Owens (Assist. Chief Deputy US Probation - Middle District of Florida), and Adrienne Wisenberg (Barnes & Thornberg). Some comments:
- See probation early. (Tess Lopez)
- Remember that the prosecutor now has to deal with the Victims Right Act & statutory obligations. (Laurel Moore Lee)
- You need to prepare your client. Spend time with client on what things to avoid saying for getting an acceptance of responsibility. You may not want the client to speak to preserve appellate issues (Donna Elm)
- Prosecutors give information about the case to the probation officers (Laurel Moore Lee/Ray Owens)
- Go to the interview with your client and participate - give your version of the incident - be an advocate. Discuss in advance any objections you may have and correct inaccuracies in the report. (Adrienne Wisenberg)
Two highlights of the program:
- Adrienne Wisenberg talked about character letters and how it is important to have them providing specific instances that tell the story of the client.
- Donna Elm presented a sentencing video that was POWERFUL.
These highlights show the importance of getting a judge to understand exactly who is your client, why your client committed this act, and why this individual deserves a lesser punishment.
Thursday, May 5, 2011
20th Annual National Seminar on Federal Sentencing Guidelines - Sentencing Issues in Securities Cases
This was an extremely high-powered panel, with Hon. Frederic Block (E.D. N.Y.) serving as the moderator.
Giving background on securities fraud sentencing was Alexandra Walsh (Baker & Botts). She noted that the biggest driver is "loss" with as many as 30 points added, and with first offenders being eligible for extraordinary sentences. As long as "loss" has such a huge influence and as long as there are judges who will look at the circumstances - there will be disparity. She asked what will be the Commission's response - will they scale back these sentences? Judge Block noted how easy it is to get life for a securities fraud sentence.
Judge Block noted how Dura Pharmaceutical set the standard of "loss" in civil cases. Speaking about post- Dura, Hank Asbill (Jones Day) noted how the 5th Circuit looked at "loss" and how it was developed in civil cases. But the 9th Circuit in Berger took a different position as noted by Judge Block. They chose not to use the civil fraud standard. Hank Asbill showed a flaw here when he asked - how do you determine the harm to society? He noted how the court gave Berger himself a break. But other cases in the 9th Circuit may not be agreeing with Berger. As noted by Judge Block - "we are dealing with fuzzy stuff." Judge Block then mentioned the Dodd-Frank Act which seems to have language more like Berger, as opposed to Dura.
Michael Horowitz (Cadwalader Wickersham & Taft, LLP) was asked whether the Sentencing Commission has to scratch Dura. It sounded like the Commission will address this issue this coming summer. But where should the Commission go - on one hand there is a view to raise the guidelines (tough on crime), yet another view is to think beyond incarceration. Judge Block questioned whether the Commission was giving judges real guidance here.
The Department of Justice (DOJ) person on this panel was Daniel Braun, Assistant U.S. Attorney in the Southern District of NY (starting of course with the typical DOJ disclaimer that he was not speaking for the dept.). He noted that with increased discretion you get broader differences in sentences. He spoke to the letter of Jonathan Wroblewski, Dir. of Policy and Legislation, DOJ. He stated that this letter was not focused on individualized cases but rather on the broad differences in sentences. (There had been criticism that the letter singled out some specific cases)
Michael Horowitz noted how in the Adelson sentencing, the judge (Judge Rakoff) specifically asked the AUSA if life was an appropriate sentence. Which of course the AUSA could not answer. (Background on Adelson - see here)
Judge Jed Rakoff, speaking next, noted that the guidelines don't capture - what kind of human being do you have in front of you. He said that bad guys who make serious mistakes deserve to rot in prison, but he felt different about good guys who make serious mistakes.
Hank Asbill looked at what should a defense attorney do - he looked at issues of change of venue (are you leaving a more favorable judge?). He mentioned the Pepper case (see background here) as to whether the court could consider post-arrest variances. Things that were banned from the guidelines, now come back into the game. The panel ended on a somewhat humorous note - with the telling about an Israeli study that showed that favorable sentences were after the judge had eaten.
Bottom line - this was an incredible lineup of speakers, an incredible panel - hats off again to Kevin Napper (Carlton Fields) for putting this one together.