Wednesday, August 19, 2009

NACDL’s Aug. 19, 2009, White Collar Crime CLE – “Testimonial Traps: Defense Strategies for Invoking the 5th Amendment in Civil Cases, Investigations & Other Proceedings”

Guest Blogger: Cynthia Hujar Orr, President of the National Association of Criminal Defense Lawyers (NACDL)

Shana-Tara Regon, NACDL’s White Collar Crime Project Director, put together this evening’s two-hour continuing legal education (CLE) program covering the critically important Fifth Amendment issues that practitioners often face. Tomorrow’s second installment of NACDL’s White Collar summer CLE series is a panel assembled by NACDL’s White Collar Crime Policy Counsel Tiffany Joslyn exploring the topic “Litigating Pre-Trial Restraint of Assets in Criminal Cases.” There is still space at NACDL’s Washington, D.C. headquarters for tomorrow evening’s program and wine & cheese reception, just RSVP and register here.

Shana explained the purpose of tonight’s Fifth Amendment-related program, “As clients in criminal cases are often involved in civil cases and other investigations and proceedings, what they say in these contexts can and will be held against them. This program provided practical guidance on the often tricky issues that arise when considering whether and how a client may remain silent.”

Tonight’s program featured leading practitioners with vast government and private practice experience and perspective: moderator Ross H. Garber, a partner in the Hartford, Conn. office of Shipman & Goodwin LLP and panelists Benjamin D. Brown, partner in the Washington, D.C. office of Cohen Milstein; Pamela J. Marple, partner in the Washington, D.C. office of McDermott, Will & Emery; and Steven M. Salky, partner in the Washington, D.C. office of Zuckerman Spaeder LLP. Click here to read more about the program, panelists and to reach a link to purchase a recording of the program.

The first order of business in tonight’s program was a brief discussion of the history and purpose of the Fifth Amendment. Ross Garber set the stage. He quoted language from the 2001 U.S. Supreme Court decision in Ohio v. Reiner, “One of the Fifth Amendment’s basic functions . . . is to protect innocent men . . . who otherwise might be ensnared by ambiguous circumstances.” Garber then added his own commentary, explaining that while the Fifth Amendment “seems pretty straightforward, as we all know in this room, Fifth Amendment issues can get really tricky.” There was no disagreement there. In fact, the ensuing discussion served as Exhibit A in support of that assertion.

The program quickly moved from the history and purpose of the Fifth Amendment to a detailed exploration of the practical issues involved in its assertion, but not via a theoretical or academic discussion. Instead, it did so by confronting a hypothetical, and to many people an entirely familiar, scenario. The panelists launched right into an examination of various aspects of the multiple parallel proceedings in which someone might find himself as a mortgage broker who was engaged in the business at the height of the housing boom.

The two-hour discussion covered a set of legal circumstances and litigation tracks that unfolded as moderator Ross Garber confronted the panelists with the complex decisions that must be made as a variety of parallel proceedings emerged and moved forward. The developing challenges for the defendant/target/suspect/putative congressional witness, as well as the company at which he had been employed, included state and federal regulatory investigations, state attorney general and U.S. Department of Justice investigations, a private class action civil lawsuit, as well as a Congressional investigation. As Pamela Marple and Steven Salky covered the perspective of defense counsel in both the civil and criminal contexts, Ben Brown was there at every turn explaining the myriad ways in which plaintiff’s counsel in a parallel civil suit can and do make the most of the defendant’s assertion of his Fifth Amendment rights. As he put it, “the plaintiff’s lawyer wants to get the defendant pleading the Fifth, on tape preferably, as early as possible,” adding that plaintiff’s lawyers want it not just generally but in response to numerous fact-based questions as they build their case on the negative inferences they can seek to have drawn from the same.

There was a careful examination of a variety of issues that counsel must sort through in the context of parallel proceedings, including what type of entities can avail themselves of the Fifth Amendment privilege, when an individual should assert it, and how an individual should assert the privilege when he does. As to how to assert the Fifth Amendment privilege, Steven Salky explained that the defendant has to say enough so that the judge knows that you are asserting the Fifth Amendment, but “he doesn’t have to use the words ‘incriminate’ or ‘self-incrimination.’”

When Congress calls your client as a witness in the midst of all of these parallel proceedings, Pamela Marple, whose experience includes five years as a trial attorney at the DOJ as well as service as counsel to the Senate Judiciary Committee and Deputy Chief Counsel to the Minority on the Permanent Subcommittee on Investigations, had plain and clear advice, “There has to be a reason to testify to Congress” in response to a Congressional subpoena.

In sum, tonight’s program was a far-reaching and intensely practical dissection of the complexities involved in the invocation of the Fifth Amendment in the panoply of contexts in which we often find our clients sought for testimony.

I am looking forward to tomorrow evening’s program at NACDL, “Litigating Pre-Trial Restraint of Assets in Criminal Cases


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