New Treatise Is Go-To Source on White-Collar Crime
Joseph G. Poluka is a partner at Blank Rome LLP in
White-collar crime practice continues to burn white hot.
The massive corporate scandals at Enron, WorldCom, and Adelphia were followed by dozens of still percolating options backdating investigations, some of which have resulted in several high profile convictions.
Prosecutors continue to bring, and win, domestic and international bribery cases.
In light of a recent scandal in
And there is the one crisis that could swamp all of these: The subprime mortgage meltdown, where multi-billion dollar write-downs are reported on a steady basis, and subpoenas are issued like parking tickets to lending institutions, Wall Street investment banks, due diligence providers, and most recently, bond insurers.
What’s an in-house counsel to do?
Good Place to Start
A good place to start is the Practicing Law Institute’s Deskbook on Internal Investigations, Corporate Compliance and White Collar Issues.
Written by members of Kaye Scholer LLP’s topnotch White Collar Litigation and Internal Investigations Practice Group, nearly all of whom have significant prosecutorial and regulatory experience, the Deskbook is a must-have resource for in-house counsel, white-collar defense attorneys, and management alike. Published in 2007, the Deskbook is a comprehensive single-volume reference guide.
The Deskbook is divided into two parts. Part I is essentially a “how-to” guide on conducting internal investigations, responding to criminal and regulatory investigations, and the issues that arise in both.
Part I also explains how to implement corporate compliance programs under the Organizational Sentencing Guidelines, how to take advantage of amnesty and leniency programs, and how to negotiate deferred prosecution agreements.
Part II of the Deskbook focuses on selected substantive topics – including the Foreign Corrupt Practices Act, money laundering, perjury, pharmaceutical drug offenses, and export control violations. If you’re faced with an inquiry into one of these areas, the Deskbook provides an off-the-shelf grounding in the statutory frameworks. In a later addition, the authors might want to include a brief primer on the mail and wire fraud statutes – workhorses used by federal prosecutors to capture a wide variety of alleged criminal activity.
The Deskbook is well-organized and well-written, and consequently easy to use. It tackles complicated topics in understandable terms and discusses high-profile cases, such as the Martha Stewart prosecution and the Kenneth Starr report, examining problems that can arise in white-collar cases. Over 400 footnotes provide accompanying authority, and there is a topical index. The Deskbook is an excellent place to get the basics or, as we all learned in law school, to spot the issues.
Keeping It Practical
The Deskbook was written with a view towards providing practical insight and guidance. Many chapters include “Practical Considerations” or “Practitioner’s Checklists” that offer inside pointers.
For example, the Deskbook’s checklist for conducting internal investigations recommends that counsel provide adequate Upjohn warnings to all employees who are interviewed, be aware of special rules when interviewing unionized employees, and consider whether the company is required, or even permitted, to indemnify or advance legal fees to employees.
The benefits and pitfalls of certain choices are addressed in the Deskbook. For example, in deciding whether a company should enter into a deferred prosecution agreement (DPA), the Deskbook warns that, even though DPAs are far preferable to criminal prosecution, their provisions, which may include substantial institutional reforms, are often burdensome and very costly (i.e., millions, if not tens of millions, of dollars in “fines”).
Accordingly, the Deskbook advises that counsel should be vigilant in assessing whether a DPA is really appropriate, particularly where a prosecutor would not otherwise pursue an indictment, and assessing whether the conditions imposed are strictly necessary to attain the stated objectives of the DPA.
The Deskbook also addresses ethical considerations for in-house attorneys, including whether they can represent an organization and its officers and employees?
Finally, the Deskbook includes 17 appendices, which include important policy statements, memoranda, and guidelines, such as the infamous “Thompson Memorandum.” Here counsel can read for themselves the source documents, not filtered through a commentator’s eye.
All-in-all, I enthusiastically recommend the Deskbook as a terrific go-to resource for in-house and other practitioners who increasingly see white-collar issues come across their desks.