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Whether certain conduct is a crime depends on more than legislatures, judges, and juries. When prosecutors decide whether, whom, and what to charge, the policies underlying their decisions create operative standards of conduct. So, too, do those of agencies administering regulatory programs backed by criminal sanctions. But what about the private sector? Sensible standards of conduct articulated by trade associations can and should play a substantial role in drawing the line between acceptable business practices and bad conduct that can be subject to criminal sanctions.

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A recent <i>Wall Street Journal</i> story asked, 'How much does it cost to defend a company and its executives when they are under investigation for accounting fraud?' In the case of Qwest Communications International, Inc., the Denver-based telephone company currently under parallel SEC and Department of Justice investigations, the answer is staggering.

The tidal wave of corporate scandals reminds us that the most popular and perhaps viable response for the corporation under siege remains cooperation with government investigators. Reports of disclosure of internal company investigations and documents have come pouring out of Enron, WorldCom, Global Crossing and many others. When corporations divulge potentially privileged materials to the government, concerns about whether such disclosure results in the waiver of the company's attorney-client privilege and the loss of its work product protection inevitably follow.

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The two federal statutes that create criminal liability for antitrust violations are arguably the broadest and most poorly defined of all federal criminal statutes, even recognizing the tortured draftsmanship of the RICO statute and the securities laws' criminal provisions.

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Recent rulings of interest to you and your practice.