• Internal Investigations,  International

    Internal Investigations, the KBR Decision and International Investigations

    In a recent post, we touched on the importance of the D.C. Circuit’s decision in KBR concerning privilege and internal investigations: Post-recession, we are living through an era of regulators’ grimaces and prosecutors’ giddiness. Editorialists and bloggers want business scalps, especially scalps of individuals (as opposed to simple monetary fines for corporations), and most especially scalps of those in banking and finance.  In the wake of the GM report and other stories about lawyers, the role of business lawyers is as suspect in the public mind as it has been for decades.  It’s as though everybody smells a rat. On the other hand, faced with ever-increasing and increasingly complex regulation, companies’ need…

  • Internal Investigations,  Privilege

    It’s Okay To Smell A Rat: Internal Investigations, Attorney-Client Privilege and the KBR Decision

    Post-recession, we are living through an era of regulators’ grimaces and prosecutors’ giddiness. Editorialists and bloggers want business scalps, especially scalps of individuals (as opposed to simple monetary fines for corporations), and most especially scalps of those in banking and finance.  In the wake of the GM report and other stories about lawyers, the role of business lawyers is as suspect in the public mind as it has been for decades.  It’s as though everybody smells a rat. On the other hand, faced with ever-increasing and increasingly complex regulation, companies’ need to conduct self-reviews and internal investigations is unavoidable. Indeed, in many industries, the governing set of rules require companies to…

  • Impeachment,  Public Corruption

    Impeachment Lessons and The Midnight Special

    This post will eventually test your affinity for the 1970s, which featured both Richard Nixon and The Midnight Special. The Special was formative in my teenage years, which explains a great deal. But first, many thanks to the Network of Trial Law Firms for the opportunity to speak in New York on “Impeachment Lessons for Internal Investigations”: People sometimes ask for good basic texts about impeachment generally.  Here are a few suggestions: Impeachment: A Handbook by Charles Black.  This slender, clear, nuanced volume is where you should start. As noted by Lawfare blog: The most important book ever written on presidential impeachment is only 69 pages long. Charles Black, Jr.,’s Impeachment:…

  • Social Media

    Booze Beats Law: Subscribe to White Collar Wire

    Please take a moment to subscribe to White Collar Wire’s email newsletter.  You’ll get notice of articles before anyone else in the Western world. Just look to the left where it says, very helpfully: Subscribe to our Newsletter Enter your email address and press the “Subscribe” button with the unnecessary exclamation point. If you are a mission-statement type, here’s ours: This is a blog about business crime.  We post stories about news, cases, judicial opinions, practical tips and scholarly work regarding white-collar criminal and civil enforcement, grand jury investigations and regulatory compliance.  We want to be useful to businesspeople, internal counsel, defense lawyers in private practice, prosecutors and law-school teachers.…

  • Controlled Substances Act,  Drugs,  Poetry,  Trials, Judges and Jurors

    Pill Mills, Poppy Flowers, Dead Poets and the Human Resources Department

    Having been through a seven-week federal criminal “pill mill” trial, I think a lot about enforcement of the Controlled Substances Act and its effect on physicians.  Aggressive enforcement effects others in healthcare as well, including management: “It’s very hard for medical professionals and those in upper management, such as hospital CFOs, CEOs, and CMOs, to see themselves as criminals,” says Jack Sharman, partner at Lightfoot, Franklin, and White, a law firm headquartered in Birmingham, AL. “This difficulty to perceive what someone else might think merits a criminal investigation impedes judgment and slows internal response.” While physicians might not see themselves as criminals for managing patients’ pain or making sure they…

  • Cooperation Agreements,  Deferred Prosecution Agreements,  Internal Investigations

    The Yates Memo and Three Dog Night

    Deputy Attorney General Yates Unless you have been on a monastic retreat or hidden as carefully as Hillary Clinton’s email server, you have by now likely read reports and analyses of the “Yates Memorandum,” a policy document issued by Deputy Attorney General Sally Yates entitled “Individual Accountability for Corporate Wrongdoing.” (Here is the document:  Yates-Memo-Prosecution-of-Individuals.pdf ). In this essay, I focus on one particular aspect that may be crucial for companies, their boards of directors, their audit committees and law department: The timing of potential disclosures to the Government and the degree to which outside counsel needs to have comfort that what he or she is relating to the Government…

  • Compliance,  Parallel Proceedings

    FIFA Indictments, Corporate Compliance, Alfred Kinsey and Robert Lee

    Law360’s Zachary Zagger has a nice piece on the FIFA prosecution and quotes, among others, Jack Sharman: “Given this many defendants and the fact that there is going to be at least some who are going to cooperate, it would not surprise me if there wasn’t a second wave of charges or people coming out of the woodwork, people you have not heard of yet,” said Jackson R. Sharman III, a white collar criminal defense attorney with Lightfoot Franklin & White LLC. “If it is going to survive, it is going to have to have a more rigorous compliance structure than some of the items that have come across thus far,”…

  • Bribery,  Compliance,  FCPA

    FIFA Indictments and the Notion of Global Compliance

    In an article by Joel Schectman for the Wall Street Journal and its “Morning Risk Report,” Jack Sharman is interviewed about the idea of a global compliance regime in light of the recent indictments of FIFA officials: Jackson Sharman, a white collar specialist at Lightfoot, Franklin & White LLC, says that the case shows that the notion of a swelling, global compliance culture may be exaggerated. Attorneys and compliance professionals often make the mistake of believing their concerns about bribery are representative of the organizations where they work, he said. “It’s dangerous to assume that a legal regime is being internalized by everybody, because clearly it’s not,” Mr. Sharman said.…

  • Cooperation Agreements,  Presumption of Innocence,  Sentencing

    Why Innocent People Plead Guilty: Judge Rakoff, Eddie Coyle, Albert Camus and Sweet Dreams of Oppression

    If they give awards for “Best White-Collar Article of The Year,” I wish to nominate one.  And it’s not even, strictly speaking, an article only about white-collar crime. Jed Rakoff is a federal district judge in the Southern District of New York (in other words, in Manhattan).  We have mentioned Judge Rakoff before, here and here.  He also famously criticized DOJ’s failure, as he perceived it, to prosecute individual executives in the financial crisis. Here, he has a thoughtful article on Why Innocent People Plead Guilty. Portions bear quoting at some length: The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the…