Friday, June 17, 2011
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” – “Monsanto and More: Ethical Tactics for Getting Paid When the Government Gets There First,” Friday, June 17, 2011
Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)
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” – “Navigating the Wilderness of Mirrors: National Security Issues for the White Collar Lawyer,” Friday, June 17, 2011
Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)
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.
Saturday, April 23, 2011
The federal criminal trial involving former GlaxoSmithKline ("GSK") Vice President and Associate General Counsel Lauren Stevens commences this Tuesday in Greenbelt, Maryland. When I first read the Indictment, without knowing anything else about the facts, it struck me that the government may have overcharged. That is probably not a good sign for the feds, since the Stevens charging instrument is a classic one-sided speaking Indictment that seeks to put the United States' case in the best possible light.
The crux of the prosecution theory is that Stevens, who headed up a team of inside and outside GSK counsel responding to an FDA inquiry, withheld information about off-label marketing of Wellbutrin. Specifically, Stevens allegedly learned that several doctors, paid by GSK and speaking at GSK-sponsored events, promoted off-label (weight-loss) use of the drug. GSK's responses were part of a voluntary production pursuant to a written request from the FDA's Division of Drug Marketing, Advertising, and Communications ("DDMAC"). Stevens allegedly agreed, orally and in writing, to provide DDMA with "materials and documents presented at GSK-sponsored promotional programs, even if not created by, or under the custody or control of GSK." But, according to the Indictment, Stevens knowingly failed to produce numerous off-label promotional and presentation materials, provided to GSK by the doctors in question, with intent to obstruct an FDA proceeding. Rather than focusing entirely or primarily on this failure to produce, the Indictment lumps in many other broad statements contained in Stevens' various cover letters to the government. It seems to me that at least some of these statements are open to differing interpretations. Perhaps the government should have more narrowly honed in on the failure to turn over the presentation/promotional materials.
Part of Stevens' defense will entail her purported reliance on the advice of outside counsel in sending GSK's written responses to the FDA. The original Indictment was thrown out by Judge Roger Titus, because federal prosecutors incorrectly instructed the grand jury that reliance on the advice of counsel is only an affirmative defense. In fact, good faith reliance on advice of counsel negates the specific intent element under the federal obstruction and false statement statutes at issue in the trial.
This prosecution should strike terror into the hearts of inside and outside counsel throughout corporate America. Of particular note is that the FDA inquiry into off-label Wellbutrin marketing did not involve a compelled production and was not even quasi-criminal in nature.
Attached for our readers' benefit are some documents setting out the government's case and what are likely to be key portions of Ms. Stevens' defense.
April 23, 2011 in Arthur Andersen, Corruption, Current Affairs, Defense Counsel, Fraud, Grand Jury, Judicial Opinions, Legal Ethics, Obstruction, Prosecutions, Statutes | Permalink | Comments (0) | TrackBack (0)
Monday, April 11, 2011
The Third Circuit recently ruled in a closely watched case, on the issue of whether corporate counsel had in fact represented an individual within the corporation and as such the attorney-client privilege should apply. (see here) The unpublished opinion of the court found no error on the part of the district court. Counsel for Appellant Norris has now filed for a rehearing en banc. Three issues are presented in this Petition:
"I. The Panel Decision Squarely Conflicts With Shramm, Arthur Andersen, and Aguilar as to the Requisite Specific Intent for a Conspiracy to Obstruct a Grand Jury Proceeding;
II.The Panel Decision Squarely Conflicts with Farrell's Holding that 'Corrupt Persuasion' Does Not Include Persuading an Alleged Co-Conspirator to Withhold Incriminating Information;
III. The Panel Decision Misapplied Bevill to Permit the Evisceration of a Corporate Officer's Personal Attorney-Client Privilege."
Petition for Rehearing En Banc - Download 2011-04-06 Petition for Rehearing En Banc
Friday, March 25, 2011
Commentary on Court Dismissal of Indictment Against Former VP & Associate General Counsel of GlaxoSmithKline
Check out - Sue Reisinger, Corporate Counsel, She Asked, Counsel Told: Case Against Glaxo Attorney Is Dismissed
The former VP and Associate General Counsel of GlaxoSmith Kline had been charged with a 6-count Indictment for the alleged crimes of obstruction (1512), falsification and concealment of documents (1519) and false statements (1000). The Indictment against Lauren Stevents has now been dismissed, but it is without prejudice.
Stevens claimed a defense to the charges of advice of counsel in her responses to the FDA's inquiry. The government response was that 18 USC 1519 is a general intent crime and therefore a "good faith reliance on advice of counsel is only a defense to specific intent crimes."
The court did not agree with the government, citing applicable sources that provide a solid basis for its holding. My take is that the statute clearly is requiring two intents - to "knowingly alters, destroys, multilates, conceals, coversup, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impeded, obstruct, or influence the investigation ....." With two intents it seems clear that one should use specific intent here.
But what is more questionable here is that the government thinks that specific intent should not be required here. Should you really prosecute someone who may not have had the specific intent to do these alleged acts? Will this achieve the deterrence from criminality that we desire? Irrespective of whether one accepts the government's claim that advice of counsel is an affirmative defense or the defense and court position that it negates the mens rea, is prosecution of this alleged conduct the way we want to spend valuable tax dollars?
This case is a perfect example of how we are failing to use our resources wisely. Do we really need to spend money prosecuting folks who may not have complied with a government discovery request properly? Or would the money be better spent using it for educating lawyers and others of how to respond to government inquiries correctly. And what happens if we turn the tables - should we start prosecuting Assistant United States Attorneys who do not comply with constitutional requirements of discovery, or would our resources be better spent educating them of the importance of upholding these constitutional rights.
Bottom line - don't refile this case.
Addendum - See here
Wednesday, March 23, 2011
In a closely watched case (see here), the Third Circuit was asked to consider whether corporate counsel had in fact represented an individual within the corporation and as such the attorney-client privilege should apply. Defendant had argued that the Bevill standard should not "apply here, as here, both the individual and the corporation have an express attorney-client relationship with counsel." Reply Brief of Ian P. Norris - Download 2011-02-25 Norris Reply Brief.
The Third Circuit issued an unpublished opinion that resolves this issue in a paragraph, stating in part that:
"[t]he District Court in this case held an evidentiary hearing and ultimately determined that Norris failed to meet his burden in asserting his privilege pursuant to the five-factor test set forth in In the Matter of Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120, 123 (3rd 1986). The District Court did not legally err in applying this test, and we see no clear error in the District Court's holding based on the facts elicited in the evidentiary hearing."
To all the corporate executives that are cooperating with corporate counsel thinking that the individual is representing them - beware....
Opinion- Download Opinion
Tuesday, February 15, 2011
In a case pending and set for trial in March in the Central District of California, with allegations of FCPA and money laundering violations, DOJ prosecutors are seeking to start another grand jury investigation of the defendants. Lawyers for the defendants cried foul and moved to quash five subpoenas calling for testimony today. As a result, the federal judge presiding over the case imposed stringent conditions on any use of the grand jury by DOJ prosecutors.
A grand jury is not to be used for "strengthening [a] case on a pending indictment or as a substitute for discovery." (Beasley, Simels, Arthur Andersen). Prosecutors claimed that their purpose in questioning these witnesses, all current employees of the company under indictment, was for a "new" investigation. Interestingly, the filings show that this "new" grand jury investigation came immediately after DOJ prosecutors were denied access to the employees for pre-trial, witness preparation interviews.
Defense lawyers Jan Handzlik and Janet Levine also argued that the DOJ prosecutors were "manufacturing" a new investigation to create reasons to postpone the trial, set for March 29th. They suspected the government would seek a superseding indictment leading to a trial continuance. Prosecutors disagreed and filed an under seal, in camera declaration to justify the new investigation.
US District Judge Howard Matz denied the defense motion to quash the grand jury subpoenas, but issued an order that handed the DOJ prosecutors what some of us consider to be a stinging defeat. He placed conditions on what the government could do if it chose to proceed with its "new" investigation, stating in part:
(1) At the upcoming trial, the Government may not proffer or refer to any newly obtained evidence derived from the testimony of any witness before any grand jury session conducted after the return of the First Superseding Indictment on October 21, 2010. . . .
(2) The Government may not, and shall not, question any witness about any business and financial relationship that the [defendant ] Company had with [other individuals and entities named in the pending indictment]
(3) The Government may not, and shall not, question any witness about any of the other events that directly form the basis for the charges contained in the first superseding indictment.
(4) The Government shall file under seal a transcript or transcripts of the grand jury testimony it obtains from the aforementioned witnesses, and it shall do so by not later than one week before the start of trial, and
(5) The Government may not point to or rely on whatever evidence it obtains at the upcoming grand jury sessions to seek or obtain a continuance of the trial date.
See Court's Order - Download Matz min order re GJ
See also Richard Cassin, FCPA Blog, Sparks Fly Before LA Trial
Tuesday, February 8, 2011
The White Collar Crime Blog mourns the passing of Mark Hulkower, who practiced white collar criminal law at Steptoe & Johnson. See Jeff Jeffrey, BLT Blog, Mark Hulkower, Defense Attorney for High-Profile Clients, Dies at 53; Steptoe & Johnson, In Loving Memory, Mark J. Hulkower (1957 - 2011).
Tuesday, February 1, 2011
A Press Release from the law firm of Holland & Knight reports that William Shepherd, who served seven years in the Office of the Attorney General of Florida, and was appointed in 2007 by former Attorney General Bill McCollum as Florida's Statewide Prosecutor has joined the offices of Holland & Knight as part of their white collar defense team.Shepherd was responsible for leading eight offices throughout Florida in the investigation and prosecution of multi-circuit criminal activity.
Tuesday, October 19, 2010
Nick Thiros was not only a lawyer's lawyer, but also a lawyer for so many people from all walks of life. He was the best of the best in the courtroom and he was also a mentor to newcomers. His gift was his understanding of people, and he used that ability to appreciate and care for them.
His courtroom skills were legendary. As a young prosecutor in Lake County, Indiana, I would rearrange my schedule to be in the courtroom to watch his closing arguments --as he mesmerized juries with his basic understanding of human nature. Nick T. had the gift of getting the answer he wanted from a witness. He had the rare gift of explaining his client's case for all to understand and appreciate. He found the "human" in each person. And most of all he argued to juries what he believed in and made each juror appreciate justice.
Nick Thiros was there when you needed him. He represented many a lawyer and judge, and often in difficult situations. He was so deserving of becoming a Fellow of the American Board of Criminal Lawyers (ABCL).
It was Nick Thiros who convinced me to join the National Association of Criminal Defense Lawyers (NACDL) and to this day, I am forever grateful. My heart goes out to his family and friends, as he will be missed. Rest in peace, Nick....
Friday, October 1, 2010
NACDL's 6th Annual Defending the White Collar Case Seminar – “Making Ends Meet: Obtaining Insurance Advancement & Indemnity in White Collar Cases,” Friday, October 1, 2010
In his “Advice to a Young Tradesman,” Benjamin Franklin included the time honored maxim that “time is money.” If that is clear to anyone, it is clear to defense attorneys. Evan Jenness, an NACDL Board member, and Lee Shidlofsky, offered helpful advice to defense practitioners interested in maximizing their ability to collect attorney fees from employers and insurers. This third breakout session of the final morning of the seminar provided several tips for obtaining advancement and indemnity for defense costs from an insurance company during an investigation and any subsequent prosecution or enforcement action. Jenness who practices in Santa Monica, CA, and Lee Shidlofsky of Austin, TX, addressed the issues thoroughly.
Jenness first summarized the multiple sources of indemnification. They include corporate charters and by-laws, partnership agreements, employment contracts, employer insurance policies, and severance agreements. In some states, there are statutes requiring companies to indemnify (e.g., California)
Jenness reminded the audience that advancement is separate from, though related to, indemnification. Companies often try to avoid or delay advancing fees. Clients are often asked for an undertaking requiring the employee to repay the company if the employee is ultimately convicted of a crime, and sometimes are even asked for security to make the undertaking enforceable. Jenness encouraged challenges to those attempts on the basis that the company could have required a secured undertaking in its by-laws or employment contract.
Jenness also encouraged defense attorneys who are unable to get a written promise from the company or its insurer to pay right away to challenge it immediately. As backup protection against recalcitrance from the company, defense attorneys may need to include language in retention agreements requiring a retainer from the client to be used if initial efforts to get paid by the company and insurance company fail.
Jenness discussed Delaware’s provision of nearly unlimited capacity for companies to indemnify employees and officers, and noted that even if an employee is employed at will, some states provide that advancement and indemnity are available.
Jenness offered several pracice tips: 1) Don’t assume your client isn’t entitled to coverage under a D&O policy due to lower rank in the company. Many policies are interpreted to cover lower ranking employees. 2) Find sample indemnity agreements by industry on the internet. Use them in negotiating the terms of employment and severance contracts. 3) There is no requirement that you share work product and privileged information with the third party fee payer. Redact bills that are forwarded to the third party payer. If the company/carrier balks because they don’t know what they are being asked to pay for, then very narrow descriptions may have to be included.
Shidlofsky reported that D&O policies are typically broad. Just because a client is under investigation for criminal or intentional conduct and there are “bad conduct” exclusions in the policy, it does not mean there is no coverage. And, most policies require a final determination of the bad conduct before coverage can be denied. There may be coverage disputes, but they are worth fighting.
Shidlofsky also offered a few key practice tips: 1) Provide notice to the insurer as soon as you obtain knowledge of the investigation. Failure to provide prompt notice can result in reduced or no coverage. 2) Read the definitions of “loss” and “wrongful act” in the policies very carefully. There is limited case law interpreting these terms, but the more modern trend in policies is to provide coverage even at the investigation stage. Much litigation is underway on these issues. 3) Evaluate whether the policy requires advancement of fees and costs, or reimbursement only. Absent clear language on this, many states require advancement of fees and costs.
Effective defense efforts take time and, therefore, money. With some tenacity and diligent searching through the sources of potential indemnification, you just might find enough money to do the job right.
Thursday, September 30, 2010
NACDL's 6th Annual Defending the White Collar Case Seminar – “The White Collar Trial: Required Skills and Exceptional Techniques,” Thursday, September 30, 2010
Moderator: Gerald Goldstein
Frank Carter spoke about openings. His advice was never to waive it. It must be brief, with no more than three to four themes. Be indignant but under control. In order to prepare it, you need early access to Jencks. In a multi-defendant case, address issues and facts relating to your client alone. Talk about your client’s good qualities you know you will be able to elicit from government witnesses. Do not promise your client will testify. Stay away from humor. Stick with a style that works for your personality. If the government uses demonstratives, you should respond to those exhibits with your own.
Chris Arguedas talked about cross-examining the key government witness. Learn how to cross by watching other accomplished lawyers. You have to have real confidence in yourself – either from doing lots of trials or by being very well prepared. Remember you have law and control on your side. Cite Crawford, argue constitutional due process, materiality – dictate pace, topics, sequencing. Remember also not to do any harm. Do not cross if you don’t need to.
Chris keeps a trial notebook with a section of each witness that she transfers to a computer to ensure it is organized. She writes down her questions, anticipated answers, text of potential impeachment – and color codes them. She recommends asking only one fact per question and never using tag lines and never schmoozing with the prosecutor or agent in the jury’s presence. It’s all about discipline and the effective use of your demeanor and outrage.
Lastly, Chris rereads the rules on impeachment with inconsistent statements right before she starts her cross. And she makes sure to use documents if she can find any to impeach.
Biz Van Gelder addressed the issue of whether to put your client on the stand. She thinks it is a decision that is made well before the trial – primarily by the client. She would prefer not to put any of them on and tries to convince them to remain silent. She also asks judges to voir dire the client about the decision. If the client testifies, you must communicate your theory of the case and the client’s credibility in the examination. The key to successful direct is preparation and your trust in their ability to help the case. Biz asks her clients to help write out the questions in conformity with her outline so the client’s voice will come through. She also recommends having a heart to heart with the client’s spouse about the defendant’s decision to testify and making sure to prepare the client for mistakes or misrecollections on cross.
Marcus Busch addressed the cross-examination of the defendant. It’s a test of your judgment how you approach the witness. Map it out weeks or months in advance – structure it around your themes and your key documents. Don’t go for the home run. Win on points. Take the defendant out of his comfort zone – he’s not adored or in charge while you are crossing him, but if the witness is annoying, give him the rope to hang himself. The key to great cross is to be creative.
Marcus uses searchable case management systems to ensure he does not fumble around with paperwork when he wants to impeach. And he recommends never bluffing.
Marcus also closely watches the defendant’s demeanor in the trial – both in and out of the jury’s presence – and tries to use that demeanor against the witness. He takes good notes on direct so he can hold the witness to exactly what he testified to and demonstrate to the jury that he is accurate and therefore credible. If the witness scores points on Marcus, he tries not to show he has been hurt.
Gerry Goldstein summarized the panel’s presentation. He then covered closing arguments. He passionately emphasized telling a theatrical story at all stages of the trial, and about borrowing great ideas from great lawyers. He admitted morphing over the years from being an “attack dog” to taking a more mature, measured approach. He talked about the importance of candor, self-deprecation and pride in your role as a defender of the accused – all critical themes to convey to the jury. And, he illustrated his points with many examples from the conference’s written materials.
Tuesday, August 31, 2010
As expected, Roger Clemens pled not guilty on Monday to charges of perjury, false statements, and obstruction of Congress. He is represented by two of the ablest white collar criminal defense attorneys in the country—Rusty Hardin of Houston and San Diego’s Mike Attanasio. I know these men and their work. They are stellar lawyers.
The government asked Judge Reggie Walton to make Clemens surrender his passport in order to reduce the risk of flight. Honest. They really did. Give me a break. Walton didn’t buy it.
It is generally assumed that Clemens could have taken five before Congress and was therefore foolish to testify and subject himself to possible perjury charges. I’m not completely convinced of this, since the activity Congress was investigating at the time appears to have been beyond the statute of limitations. How can you incriminate yourself by truthfully admitting to something that you can no longer be prosecuted for?
At any rate, Clemens appeared without a subpoena, so there was no question of him not testifying. His attorneys will be able to argue to the jury that he had everything to lose and nothing to gain by appearing and testifying. Ergo, he must have been telling the truth. This can be a powerful argument in skilled hands, particularly in front of a DC jury, but it is better not to be forced to make it at all-better not to be indicted in the first place.
Roger's dilemma is the dilemma of the client with exposure, even limited exposure, who cannot or will not do the prudent thing and shut the hell up. It is best not to testify under oath, or even talk to the government, if you face potential criminal prosecution. Just ask Martha Stewart. But some high profile clients cannot take the perceived damage to their reputations involved in invoking the privilege. Clemens had the example of Mark McGwire in front of him. McGwire’s reputation was permanently and severely damaged by his refusal, on Fifth Amendment grounds, to answer a Congressional panel’s questions.
I know, I know; the privilege protects the innocent as well as the guilty. But nobody believes that in television land. Had Clemens publicly invoked the privilege, he would have been scarred for life. And he is not some dime-a-dozen, $40 million bonus CEO. He is one of the immortals.
The reputational dilemma is not confined to high-profile clients or the decision to invoke the Fifth Amendment. As a prosecutor, I saw defendants refuse to take plea offers, including misdemeanors with no jail time, because they could not admit wrongdoing to a spouse or child. It is a reminder that the strategy and tactics of criminal defense work are not always confined to logical analysis. The human, emotional element is ever present.
August 31, 2010 in Celebrities, Congress, Current Affairs, Defense Counsel, Martha Stewart, News, Perjury, Privileges, Prosecutions, Prosecutors, Sports, Statutes | Permalink | Comments (6) | TrackBack (0)
Monday, August 16, 2010
The National Association of Criminal Defense Lawyers' most prestigious award is the Robert C. Heeney Memorial Award, established in 1981 in honor of Heeney, NACDL's 18th President. According to NACDL's website, the Heeney Award "is given annually to the one criminal defense attorney who best exemplifies the goals and values of the Association, and the legal profession." Past winners have included such giants in our profession as Albert Krieger, Barry Tarlow, Nancy Hollander, Barry Scheck, Barbara Bergman, Gerry Goldstein, Lisa Wayne, and Jeffrey Fisher.
This past Saturday in Toronto, at its annual convention, the NACDL gave the 2010 Heeney Award to Ellen S. Podgor. I can't think of anyone more deserving. Congratulations, Professor Podgor!
Monday, August 9, 2010
We mourn the passing of James K. Robinson, educator/dean, prosecutor, defense counsel, and a truly wonderful person. He served as assistant attorney general in the US Department of Justice heading up the criminal division, as dean of the Wayne State Law School, and most recently as "a partner in the Business Fraud and Complex Litigation Practice in Cadwalader's Litigation Department" (see here). He was actively engaged in law reform work and was a member of the American Board of Criminal Lawyers (ABCL). Henry "Hank" Asbill (JonesDay) said, "as a prosecutor, Jim embraced his duty fairly to seek justice; and as a defense attorney, he thrived on his responsibility to zealously defend his clients. He was a true gentleman who was loved by many and admired and respected by all." I could not agree more. He will be missed.
See also Bill Laitner, Detroit Free Press, James K. Robinson: WSU Law School's former dean
Thursday, July 15, 2010
Wednesday, May 26, 2010
Guest Blogger - Op Ed
With more than 20 years as an American criminal defense lawyer, I have witnessed the drafting and enforcement of innumerable federal criminal laws and regulations that patently fail to meet the basic requirements of fairness and justice. More and more, ordinary, hard-working people are being prosecuted for doing seemingly lawful, everyday things that run afoul of federal authorities or the tax collector. And then their nightmare begins.
Recently, I represented a physician who with other physicians and a medical supply company were involved in what can only be described as a profound personal and professional nightmare for them. Federal prosecutors decided to publicly investigate the clients for making treatment referrals that were not covered by Medicare or Medicaid. The patients in question, a number of whom were injured on the job and on worker’s compensation, came to the clients seeking to be made well again. When the clients made referrals for special treatment for patients with private insurance, sometimes the claims would be covered and honored by the insurance carrier, and sometimes they would not. It would depend on the carrier and the individual’s circumstances. To be sure, the treatment in question in this case has been covered by multiple insurance carriers whose names we all recognize.
Well, buried deep in the criminal code and the accompanying regulations, there are criminal penalties for making certain types of medical referrals when the patient’s medical care is covered by, in this case, (federally funded) Texas Medicaid or Medicare. In fact, a referral for more than $100 of the particular treatment in this case for a Medicaid/Medicare-covered patient can result in many years in prison – if dishonesty is involved. But today, the federal prosecution bar is set much lower than the bar for ordinary crimes such as theft. Even a mere paperwork mix-up can result in a major criminal investigation where federal regulations are concerned.
After three years of search warrants, subpoenas, interrogations, public embarrassment and scrutiny in the media, threats to their professional licenses, and significant legal and other expenses, it was determined that, as the clients knew all along, they had done nothing wrong. No indictments were issued. Their lives, the lives of their patients, and necessarily the lives and practices of other physicians and professionals seeking nothing more than to do right by their patients and clients, will never be the same. They must now live with the knowledge of what we as criminal defense attorneys have been watching unfold for decades – we are all potential victims of poorly drafted laws that can be improperly and selectively applied by prosecutors. The irony has not been lost on me. These doctor-clients were prosecuted not because they harmed anyone, but because they tried to help people.
To be sure, health care fraud is a pretty big business in America, with significant costs to all of us. But when the laws passed to deter and punish those who are actually committing those crimes are so poorly crafted that they lead to honorable, decent, everyday people becoming ensnared in our criminal justice system, there is no better evidence that we have a serious problem that must be addressed at the highest levels. We have reached a point where the federal criminal code rivals or exceeds the federal tax code in volume and complexity.
For nearly two years, the National Association of Criminal Defense Lawyers and the Heritage Foundation have studied this problem, and its causes, in great depth. Noting that the federal criminal code alone now has an estimated 4,450 federal crimes, with an estimated tens of thousands more criminal provisions buried in the federal regulatory code, our organizations set out to see how defective laws, specifically those lacking adequate intent requirements, actually get enacted. The conclusions of this study, and the common sense recommendations to stop and reverse this trend and return the federal criminal law to its rightful role in our free nation, are set forth in a recently released report, "Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law."
As a practicing member of the criminal defense bar, I know that a lawyer’s job is to protect everyone’s rights, not just those of the criminally accused. Congress makes that job harder when it fails to recognize that a criminal law that no one understands – particularly one that can be violated accidentally, with no intent to hurt anyone – disserves society. Congress is eroding a core element of the criminal law – the intent to do harm or unjustly enrich one’s self. I hope members of Congress and their staff will consider that, and our report, the next time someone says, “There oughta be a law.”