The Corporate Attorney-Client Privilege Survives
May 24, 2005
The dangers to the proper functioning of the corporate attorney-client privilege in the wake of recent federal and state law enforcement activities have been well-documented and widely discussed. The year is only half over and already two reports on the issue have been produced and a third major inquiry is underway. A survey by the Association of Corporation Counsel disclosed that 30% of the respondents' corporate clients had "personally experienced an erosion in protections offered by privilege/work product." A similar survey of outside counsel conducted by the National Association of Criminal Defense Lawyers reported 47% of corporate clients had experienced such an erosion. Both organizations have taken up the difficult task of 'debunking the myth' that assertion of the privilege is inappropriate or a sign of guilt.
In The Courts
May 24, 2005
National rulings of interest to you and your practice.
Enforcement Against Market-Driven Misconduct
May 24, 2005
Government plays a critical role in the design of some free markets and in the operation of many. The recent energy debacle in California resulted in part from defective governmental design of California's markets for wholesale and retail electricity. Even where markets are shaped largely by private-sector activity, government often has a critical role in influencing the incentives that guide conduct in those markets. In particular, law enforcement agencies, especially regulatory agencies, have a critical responsibility for the proper functioning of competitive markets within their jurisdiction -- the responsibility to elaborate and enforce applicable laws so as to constrain market forces from driving participants into socially undesirable conduct.
The Benefits of Booker for Cooperating Defendants
May 24, 2005
The Supreme Court's decision in <i>United States v. Booker</i>, 125 S.Ct. 738 (2005), brought significant changes to federal criminal procedure. Mandatory sentences under the federal Sentencing Guidelines (Guidelines) became advisory, and with this change came some subtle but important opportunities for criminal defendants who cooperate or provide "substantial assistance" in prosecutions. Now, convicted corporations and employees may be able to provide more input to courts about their cooperation with or assistance to the government. This may make sentencing judges more willing to grant downward departures from sentences calculated by Guidelines formulas.
Strangers in a Strange Land
May 02, 2005
Recent pronouncements by both the Supreme Court and Congress have significantly expanded the reach and power of the federal money laundering statute. Although traditionally associated with drug dealing, the statute can reach and has reached any illegal activity that generates large sums of cash (eg, insider trading, fraud, embezzlement). These changes in the law afford the government greater flexibility in where it can bring money laundering cases, and make it easier for the government to obtain a conviction for conspiracy to commit money laundering. Rule 18 of the Federal Rules of Criminal Procedure states that "[u]nless a statute of these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed."
In The Courts
May 02, 2005
National cases of interest to you and your practice.
Lawyers Beware
May 02, 2005
In the first 3 months of 2005, the SEC filed 18 cases against lawyers. More are clearly coming. Just last month, SEC Chairman William Donaldson warned that the SEC is "firmly committed to both the rules governing attorney conduct, and to the principles that underlie them, and we will enforce them when violated." As if Donaldson's message were too oblique, the SEC's chief litigation counsel put it bluntly: the SEC "has made cases against lawyers a priority."
Corrupt Persuaders
May 02, 2005
The Supreme Court has now heard oral argument in the late Arthur Andersen's petition to review its conviction under the federal "witness tampering" statute, 18 U.S.C. ' 1512(b)(2). This case is the most recent and infamous manifestation of a decade-long debate about the statute. Now the Court has an opportunity to impose clear rules that would resolve the uncertainty about the scope and mental state required to prove "witness tampering" in federal investigations of all kinds.
