In The Courts
February 27, 2006
The latest rulings you need to know.
The Whens and Whys of Asserting Fifth Amendment Privileges
February 27, 2006
The Fifth Amendment's protection against self-incrimination is one of the foundational rights of the America justice system. It provides that "no person ... shall be compelled in any criminal case to be a witness against himself." It protects witnesses from what Justice Field called the "cruel trilemma of self-accusation, perjury, or contempt." <i>Brown v. Walker</i>, 161 U.S. 591, 637 (1896) (Field, J., dissenting). In this post-Enron era of corporate prosecutions, it is critical that corporate insiders understand the scope of the Fifth Amendment's protection.
Is Your Hotline AAA-Rated?
February 27, 2006
Many organizations have hotlines that are needlessly weak or even ineffective, and they often don't even know it. There are no up-to-date, authoritative standards for hotlines. This has forced SEC registrants and their auditors to use an unusually high degree of judgment in evaluating the effectiveness of hotlines for Sarbanes-Oxley ' 404 reporting. Non-registrants are even more vulnerable to "phantom hotline syndrome."
Parallel Proceedings: Establishing the Boundaries
February 27, 2006
An investigation by the SEC is always cause for great concern by corporations, executives and their attorneys. In recent years, there has been reason for even greater concern due to prosecutors' increased focus on corporate fraud and the resulting increase in "parallel proceedings." Parallel proceedings involve simultaneous or successive investigations and/or litigation of separate criminal and civil actions by different government agencies arising out of the same set of facts. This trend requires defense counsel to assess whether corporations and individuals may be subjects of a criminal investigation in cases that would not have given rise to such scrutiny several years ago. Faced with possible criminal liability, clients and counsel must carefully evaluate and weigh the potential benefits of cooperating in an SEC civil investigation versus the very real possibility of furnishing incriminating information to the government for use in a criminal proceeding.
In The Courts
January 26, 2006
Rulings of interest to you and your practice.
Over-Assertion of Attorney-Client Privilege
January 26, 2006
Buried deep within the 69-page superseding indictment in the KPMG tax fraud case lies a development with the potential to chill the assertion of the attorney-client privilege by defense attorneys in criminal conspiracy cases. In the conspiracy count in <i>United States v. Stein et al.<i>, the wrongful assertion of the attorney-client privilege has been charged as a central aspect of the crime itself, both as part of the means and methods of the conspiracy and as an overt act in furtherance. This aggressive charging decision may cause some members of the defense bar to think twice about asserting the privilege in close cases -- even where it is being asserted legitimately -- for fear that their claim of privilege may overreach, thus inadvertently implicating them in the underlying conspiracy.
Employers and Employees
January 26, 2006
When I entered law practice in 1971, it was common in corporate criminal investigations for a single law firm to represent the target corporation and all its relevant employees. They hung together lest they hang separately. Over time, practice changed, and such joint-representation arrangements mostly disappeared. The old paradigm was succeeded by a new one, which recognized the separate interests of the corporation and each of its relevant employees, but also provided a large measure of mutual support and good will on the defense side. This paradigm, too, has been attacked by prosecutors and now has largely disappeared in major federal and some state investigations. It has been succeeded by a new, far harsher paradigm.
'You've Got Mail' But Is It Privileged?
January 26, 2006
E-mail evidence is one of the newest and sharpest arrows in the government's quiver. In recent years the government has won several convictions based on little more than damning e-mail evidence. Nonetheless, people continue to use e-mail casually or even thoughtlessly, producing a data stream of potential admissions. To make matters worse, with the proliferation of portable e-mail devices, such as the ubiquitous Blackberry, the attention paid to each e-mail diminishes while the amount sent rises dramatically.
Employee Blogging: What Employers Don't Know Could Hurt Them
January 03, 2006
According to an American Management Association 2005 survey of 536 employers, 84% of companies have established policies relating to personal e-mail use, and 81% have established policies relating to personal Internet use, but only 23% have policies on personal postings on corporate blogs. <br>This article discusses blogging and the potential for employer liability that employee blogging presents. It recommends that employers establish blogging policies so that such liability hopefully may be avoided.
