Thursday, June 16, 2011

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

Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)

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.


June 16, 2011 in Celebrities, Conferences, Defense Counsel, Media | Permalink | Comments (0) | TrackBack (0)

Sunday, June 12, 2011

Conferences - Lake Tahoe - NACDL White Collar Crime - Turning the Tables on the Government

June 16-17 - Lake Tahoe-  First Annual West Coast White Collar Conference - Download West Coast WCC Brochure  For more information and to register - here


June 12, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Sunday, May 22, 2011

Upcoming Conference - NACDL - Lake Tahoe

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.


May 22, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

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.


May 7, 2011 in Arthur Andersen, Conferences, Deferred Prosecution Agreements, FCPA, Investigations, Prosecutions | Permalink | Comments (0) | TrackBack (0)

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. 


May 6, 2011 in Conferences, Sentencing | Permalink | Comments (1) | TrackBack (0)

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. 

Providing history of how we got here - Peter S. Spivack (Hogan Lovells) used the case of Jamie Olis (background see here). He told how each new piece of legislation increased the possible 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.


May 5, 2011 in Conferences, SEC, Securities, Sentencing | Permalink | Comments (0) | TrackBack (0)

20th Annual National Seminar on Federal Sentencing Guidelines - Intro

Opening remarks for the seminar were by Kevin Napper (Carlton Fields) & Ted Simon (speaking on behalf of NACDL)- Although I was not there, Ted Simon tried to discern the diversity of the audience.  He asked - "how many believe in the concept that a federal sentence should be sufficient but not greater than necessary"- he received a response of a lot of hands.  He next asked - "how many are dedicated to the concept that a federal sentence should be 'something, but not greater than as little as possible'" - he received laughter.  He next asked - we can't ask the question of how many believe that a federal sentence is insufficient, even if greater than the statutory maximum. 

He noted that the conference included a diverse, rich, talented, experienced, pool of participants. He called the seminar "unequivocally the leading federal sentencing seminar in the country."  He said it was a seminar composed of the leading federal court probation specialists, jurists, prosecutors, and professional officers on all sides of the issues - "all the essential ingredients of the sentencing stew" and a program where everyone can learn and perform their respective roles better. And of course he gave a plug to join NACDL.

Hats off to Kevin Napper, Carlton Fields, for putting together an incredible lineup and conference.


May 5, 2011 in Conferences, Sentencing | Permalink | Comments (0) | TrackBack (0)

Sunday, April 24, 2011

Upcoming Conferences

20th Annual National Seminar on Federal Sentencing Guidelines, May 4-6, Orlando, Florida here

ABA Third Annual Internal Corporate Investigations & Forum for IN-House Counsel, May 4-6, 2011 New York, here

ABA 21st Annual National Institute on Health Care Fraud, May 11-13, 2011, Miami Beach, here

NACDL's 1st Annual West Coast White Collar Conference - "Turning the Tables on the Government", Lake Tahoe, June 16-17, 2011 here

NACDL's 7th Annual Defending the White Collar Case - NY, September 22-23, 2011 here


April 24, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 12, 2011

Upcoming Conferences

ABA Section of Litigation and Criminal Justice, April 13-15, Miami Beach, Florida here

20th Annual National Seminar on Federal Sentencing Guidelines, May 4-6, Orlando, Florida here

American Bar Association Criminal Justice Section Presents, A Town Hall Meeting on the State of White Collar Crime, April 15, 4:00 PM to 5:30 PM - Reception - 5:30 PM – 7:00 PM
Gansevoort Miami Beach 2377 COLLINS AVENUE, MIAMI BEACH, FL here

ABA Third Annual Internal Corporate Investigations & Forum for IN-House Counsel, May 4-6, 2011 New Yorkhere

ABA 21st Annual National Institute on Health Care Fraud, May 11-13, 2011, Miami Beach, here

NACDL's 1st Annual West Coast White Collar Conference - "Turning the Tabales on the Government", Lake Tahoe, June 16-17, 2011 here

NACDL's 7th Annual Defending the White Collar Case - NY, September 22-23, 2011 here 


April 12, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Sunday, March 20, 2011

Upcoming Conferences

Overcriminalization 101: The Dodd-Frank Act as Case Study (Heritage Foundation, NACDL, Texas Public Policy) - Speakers are Andrew Wise (Miller & Chevalier) & Brian Walsh (Heritage Foundation) - Thursday, March 24, 2011, 12:00-1:30 p.m., Capitol Visitor Center, HVC-201  Please RSVP to  or (202) 608-6205 by Wednesday, March 23, 2011.

ABA Section of Litigation and Criminal Justice, April 13-15, Miami Beach, Florida here

20th Annual National Seminar on Federal Sentencing Guidelines, May 4-6, Orlando, Florida here

American Bar Association Criminal Justice Section Presents, A Town Hall Meeting on the State of White Collar Crime, April 15, 4:00 PM to 5:30 PM - Reception - 5:30 PM – 7:00 PM
Gansevoort Miami Beach 2377 COLLINS AVENUE, MIAMI BEACH, FL here


March 20, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Sunday, March 6, 2011

20th Annual National Seminar on Federal Sentencing Guidelines

May 4-6 in Orlando, Florida, the Tampa Bay Chapter of the Federal Bar Association, The NACDL, and the Criminal Justice Section of the ABA, hold the Twentieth Annual National Seminar on the Federal Sentencing Guidelines. (see here) This is the premier yearly federal sentencing conference, providing the basics of federal sentencing for newcomers and the very latest updates and practice tips on what is happening, practically and theoretically, in federal sentencing courts throughout the country. In a post-Booker world, it is critically important to know how best to advocate within and outside of the sentencing guidelines.  With increased judicial discretion at the district court level, the distinct work of judges, trial counsel, and probation officers becomes particularly important.

This year the conference offers panels with judges such as Hon. Fred Block, Paul Borman, Steven Merryday, Jed Rakoff, Charlene Honeywell, Robin Cauthron, Robert Hinkle, John Antoon, II, William K. Sessions, III, John Gleeson, Robert Pratt, and others. There are breakout sessions on sentencing in securities cases, drug offenses, pornography offenses, and fraud, just to name a few of the topics. The conference also has sentencing mitigation specialists speaking. Co-blogger Sol Wisenberg and I will both be there and look forward to seeing everyone for this highlight event.


March 6, 2011 in Conferences, Sentencing | Permalink | Comments (0) | TrackBack (0)

Saturday, March 5, 2011

ABA White Collar Crime Conference - At What Cost Winning

This panel was moderated by Michael Pasano, Carlton Fields. It started with a scene from the Verdict with Paul Newman - a scene that explores the question of the tension between justice and winning. The presentation used three movie clips from different movies to discuss the ethical conduct of lawyers.

One of the first topics explored was the prosecutor/defense attorney relationship.  Nina Marino, Kaplan Marino, spoke about how she has never been a prosecutor.  Mark Filip, Kirkland & Ellis, talked about the role of a lawyer in the court, but how you can be colleagues outside the courtroom.   Judge Paul Borman noted that in criminal cases there is civility - he does not always see the same in civil cases. Andre Birotte, Jr., U.S. Attorney for the Central District of California, talked about the training that goes on in his office. There is no case worth cutting corners.

The panel looked at the celebrity defendant, leaks to the press, questioning the venire, the more aggressive use by prosecutors of filing pre-trial motions, and an assortment of other ethical issues.  Some highlights included:

  • Nina Marino said there is one thing you have - it's your integrity - and if you lose this you lose your ability to effectively represent your client. 
  • U.S. Attorney Melinda Haag, said that when the case involves a celebrity, she tries to treat it the same as any other case. She tries to put the celebrity status aside. 
  • Mark Filip noted that structure/procedure can make a difference in a case -  for example, whether it is the local US Attorney handling the case or a special prosecutor - especially if this is the career case for the attorney and it is all they are handling. 
  • Judge Borman  talked about how difficult it can be for the prosecutor to comment on evidence that did not come in but was mentioned by the defendant in perhaps opening statement.  It is espcially difficult when it might cross into the realm of the defendant not testifying, which of course the prosecutor can make no comment about.
  • The panel talked about how DOJ views defense counsel when they bring what the prosecution believes to be frivolous claims - claims of prosecutorial misconduct. This led to a discussion of bullying by the government. Michael Pasano gave the example of the prosecutor who threatens that if you don't take a plea the prosecutor he/she will indict the wife and others related to the target. U.S. Attorney Melinda Haag tried to get the audience to see another side to this action, using an example of a drug case where the mother, father, and grandmother are all involved.  She said she was thinking about a small child in the negotiation and who would care for that child.
  • In discussing leaks, U.S. Attorney Birotte spoke about the difficulties with leaks. He said they tell their agents that things need to be kept confidential. US Attorney Haag reminded the audience of First Amendment rights here.
  • Nina Marino spoke about the importance of being able to question the jury venire.  Judge Borman initiates the voir dire, but lets the parties do follow-up questions. Michael Pansano noted that many judges don't allow follow-up questions.   
  • U.S. Attorney Melinda Haag thought a more aggressive use of pre-trial motions by prosecutors was good.  She said you don't want to pollute the trial with inadmissible evidence.  But Judge Borman jumped in here and said - why don't you run it by the defense first- maybe they'll agree and a hearing will not be necessary on this.

The panel finally got to a discussion of Brady- a topic of enormous importance. Mark Filip said that as a prosecutor you need to try and find the truth with a cooperator. A healthy dose of cynicism with a cooperator is important. U.S. Attorney Andre Birotte said you need to try and corroborate the information given by cooperators.  If you get information that is helpful to the defense you need to turn it over. He said he thinks the department takes this seriously. He said that some small number of defense attorneys are using prosecutorial misconduct as part of the playbook. On the other side, Nina Marino told of her experience in representing a cooperator - that a main witness being a substance abuser - was not being considered by the government to be Brady. She noted that the agents were deciding that something would not be helpful to the defense - things that she thought she could use if she were representing the defendant. Judge Borman noted that if in doubt of whether something is Brady - go to the judge and ask him or her.  Don't take a chance of needing to retry the case.  He has received items from prosecutors and it was clear that it was Brady

I was troubled by the Brady discussion and am glad the ABA is doing a study to find out what is happening across the country. To me the problem here is clear -  can the government really know what is useful to the defense. Prosecutors can't and shouldn't be making the determination of whether something is Brady or not. Hopefully there will be a change to the rules of criminal procedure to recognize the existing problems in discovery practices.


March 5, 2011 in Conferences, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Thursday, March 3, 2011

ABA White Collar Crime Conference - Honest Services Fraud Panel

This panel was moderated by Professor Julie O'Sullivan of Georgetown Law School.

It started with Denis J. McInerney, Chief of the Fraud Section of the Criminal Division of the Department of Justice, who gave the history of the mail fraud statute from its inception up to the Court's decision in Skilling.

The second panelist was Martha Boersch of Jones Day.  She spoke about the 110 cases that have been examined post-Skilling. Some circuits have said a fiduciary duty is required - but not all circuits have held this. Another big issue is whether the government has to prove a quid pro quo - she noted the split in some court cases on this issue. There is also uncertainty as to what a quid pro quo would be in this context. Does the government have to prove a contemplated economic harm? There are likely to be future cases on the definition of honest services coming from instructions given in mail fraud cases.

The third speaker wasFrank Razzano, Pepper Hamilton,who spoke about five open questions: 1) Does it require a fiduciary duty? (He said you should make sure that there is a breach on the part of the payor); 2) Is legislation necessary to address this issue or is there a way around this for prosecutors; (He spoke about the case of U.S. v. Jain here- how you can use a pecuniary theory of mail fraud; 3) Does Skilling limit the stream of benefits theory?  4) He noted that you need to analyze the intent of the payor and payee carefully   5) Gratuities - does honest services fraud include this, or is it limited to bribery?  He looked at some of the cases where these issues had arisen.

Finally Professor Julie O'Sullivan talked about congressional acts that have been introduced since Skilling.

(esp)(blogging from San Diego)

March 3, 2011 in Conferences, Congress, Fraud, Prosecutions | Permalink | Comments (2) | TrackBack (0)

ABA White Collar Crime Conference - Public Corruption Panel

This afternoon breakout session on public corrruption was moderated by Joshua R. Hochberg (McKenna, Long & Aldridge).

Jack Smith, Chief of the Public Integrity Section of the Criminal Division of the Department of Justice,spoke about how his office was moving cases along. He stressed the importance of maintaining the deadlines that are established.  He also stated he has not found a problem finding statutes to use when bringing state and local corruption cases post the Supreme Court's modification of 1346. He said that other statutes are available to bring conflict of interest cases.

Robert M. Cary, a partner in the Washington, D.C., office of Williams & Connolly LLP,  noted the lack of transparency in discovery.  Until there is an enforceable rule, it will be a problem.

Laura A. Miller, Nixon Peabody LLP, said that "successful representation is when my name and my client's name does not appear in the press."

Patrick M. Collins, Perkins Coie LLP questioned why the government can't go the extra mile and have open file discovery.

The panel discussed the Speech & Debate Clause and how it can affect a case.  They also looked at discovery issues - Laura Miller noted the lack of uniformity on discovery issues.  She mentioned how in the "rocket docket" they receive Jencks material the Friday before trial. Jack Smith said that if it is close - turn it over.Jack  Smith said they sometimes he will highlight documents for the defense. He recognized his duty to go through documents and find Brady material.  Laura Miller noted that we should all work together to manage discovery.  A final topic discussed was venue.

(esp)(blogging from San Diego)

March 3, 2011 in Celebrities, Conferences, Corruption, Fraud | Permalink | Comments (0) | TrackBack (0)

ABA White Collar Crime Conference - Luncheon Speaker

The luncheon speaker was not Attorney General Holder, as had been planned.  Filling in for him was Deputy Attorney General James Cole. DAG Cole noted the high level of justice department experience at the top of the office.  He said that what is different today from in the past is terrorism.  He noted that a lot of resources in law enforcement were going to terrorism. He said it was important to reinvigorate important parts of the DOJ mission. He spoke about some of the accomplishments in the white collar area, such as in the civil division in 2010 - 2.5 billion dollar from cases - the largest health care fraud case. He also spoke about initiatives on health care  and financial fraud.

(esp)(blogging from San Diego)

March 3, 2011 in Conferences, Prosecutors | Permalink | Comments (1) | TrackBack (0)

ABA White Collar Crime Conference - Lessons Learned From Recent Trials

The opening panel of this morning discussed some recent white collar cases: Karatz (alleged options backing); WebMD (alleged financial statement fraud), and Petters (alleged Ponzi scheme).  Ronald J. Nessim was listed as moderating this panel, but Vince Marella filled in for him. Particularly interesting were the remarks of John Lauro, who talked about how a group of defendants stuck together for a long time - and the importance of this for the case. Both he and John Keker discussed the initial corporate investigation in their cases and how the companies did not conduct it with a purpose to demonize their clients, although in one instance the later relationship might not have been as amicable.

In the Petters  case, the prosecutor explained how the case came to light and how quickly it moved forward.  This was contrasted with the WebMD case where there was no discussion with the prosecutors. What was noted in the WebMD case was the importance of having resources to make the case -  Lauro said it would not have been possible without resources. 

John Lauro explained that one of the biggest challenges for the defense was the discovery.  He also explained how a Daubert challenge allowed them to educate the judge about the case.

I only wish I could have stayed to listen to more of this fascinating presentation - but off to a meeting for my panel on ethics.

(esp)(blogging from San Diego)  

March 3, 2011 in Conferences, Fraud, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Wednesday, 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)

March 2, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Saturday, February 12, 2011

Upcoming Conferences

Antitrust and Title 18: How the Antitrust Division Goes Beyond the ShermanAct to Enforce Its Mission Friday, February 11, 2011, Atlanta, Georgia - 4:00 p.m. – 5:30 p.m. - M202, Marquis Level here 

The Third Annual National Institute on Internal Corporate Investigations and Forum for In-House Counsel, May 4-6, NY here

25th Annual National Institute on White Collar Crime, March 2-4-, 2011, San Diego - here

20th Annual National Seminar on the Federal Sentencing Guidelines,  May 4 - 6, 2011,  sponsored by The Tampa Bay Chapter of the Federal Bar Association, The National Association of Criminal Defense Lawyers,  andThe Criminal Justice Section of the American Bar Association -Buena Vista Palace Hotel & Spa in Orlando, FL here


February 12, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, January 21, 2011

Upcoming Conferences

25th ABA Annual National Institute of White Collar Crime - San Diego, California, March 2-4 here

20th Annual National Seminar on the Federal Sentencing Guidelines, Orlando, Florida, May 4-6 here

ABA 2011 CJS Midyear Meeting - will be held February 11-12, 2011 in Atlanta, GA - here

Friday, February 11, 2011, 4:00 p.m. – 5:30 p.m. - M202, Marquis Level

Cosponsored by Section of Antitrust Law, and in recent years, the Antitrust Division of DOJ has made wide use of statutes in addition to the Sherman Act to enforce its mission of protecting competition. This program will discuss how the Division has utilized the fraud statutes, the FCPA, and obstruction statutes in recent prosecutions. To register, email Please be sure and include the name or number of the session(s) you will attend.

Securities Docket, January 24, 2011 - 1 p.m. - webcast - Global Anti-Corruption Enf. & Compliance – 2010 Year in Review -Channel: Securities Litigation and Enforcement Channel

Illinois Association of Criminal Defense Lawyers - Harrah's Casino, Joliet, Ill., Friday, Feb. 11, 2011 here


January 21, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Sunday, November 21, 2010

Upcoming Conferences

20th Annual National Seminar on the Federal Sentencing Guidelines -  May 4-6th - Buena Vista Palace Hotel & Spa in Orlando, Florida here

ABA Criminal Tax Fraud Conference, Dec. 2-3, 2010, San Francisco here

ABA Environmental Compliance & Criminal Enforcment, Pittsburgh, Dec. 9 here

ABA 25th National White Collar Crime Institute, San Diego, March 2-4 here


November 21, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)