You’re one anxious big fish. You were the manager of two colossal New York hedge funds, both of which recently and dramatically collapsed, wiping out the assets of thousands of faithful investors. You’re a social pariah, and your stricken wife and kids have moved in with your in-laws. Anybody who recognizes you from the unflattering images plastered on the front pages of the “New York Times” and “Daily News,” including your uppity 5th Avenue doorman, greet you with a sneer.
Far worse is the fact that hordes of young, hungry investigators from the office of Manhattan’s U.S. Attorney are convinced you deliberately misled investors about your funds’ health. They’re loudly alleging you conjured up fraudulent values for the funds’ risky sub-prime securities, and, smelling blood, they’re sifting through myriad records of everything you ever did, said, e-mailed, or twittered. Your bullish public comments, they shrilly declare, cloaked your bearish villainy.
The government is always looking to catch world-class crooks.
Alone, friendless, and desperate, your mind reels as you think of all the former Wall Street lions rotting on a cot in some cell in federal prison serving 7 to 150. It’s like a “Who’s Who” of corporate titans. Ponzi-scheme genius, Bernie Madoff. Publishing tycoon, Conrad Black. Aldelphia Communications founder, John Rigas. WorldCom CEO, Bernie Ebbers. Tyco’s Dennis Kozlowski. Enron CEO, Jeffrey Skilling. You may become another poster boy for American corporate greed and corruption.
Where’s the out?
The out is a first-class criminal defense attorney.
What Is It?
A white-collar lawyer advises clients about available strategies and options when they’re facing intense scrutiny by a government agency. The most popular white-collar crimes include corporate fraud, tax evasion, money laundering, and individual corruption.
Any short list of high-end white-collar defense attorneys should be composed of former government prosecutors. That is, lawyers who’ve “flipped,” as they say in the under-worldly language of criminal law. It’s these highly skilled attorneys who understand the prosecutorial mindset, and can anticipate the cunning strategies they’ll employ against you.
As much as you might resent these well-dressed law enforcement officials, with their farrago of lies and defamations, you nevertheless want a defense attorney who has a friendly relationship with them. Government prosecutors and agents automatically give more credibility to defense attorneys who’ve forged their legal skills as prosecutorial attack dogs.
Who Needs One?
Big fish.
The government is always looking to catch world-class crooks. Agents and prosecutors always enjoy making a media splash, both to have a profound impact on deterrence, and their careers. This means white-collar crime involving government corruption and big-money corporate fraud are currently at the top of the list.
Benefits
As with all legal issues, the earlier an attorney is brought into the investigation, the better. It’s extremely difficult to fix errors made by the clients through disclosures and interviews with the government agents. The first questions a top-tier white-collar defense attorney will ask is, “What did you say to government investigators?” and “Who else knows about your problem?” It’s critical for your counsel to understand the scope of your problems, and what the universe of your knowledge is. If twenty people know what you’ve been up to, your options are different than if your Golden Retriever is the only one with any knowledge.
An effective white-collar defense attorney will want to know all the facts. It’s impossible to form a defense strategy without fully knowing the obstacles, hurdles, and pitfalls that may be encountered in an investigation or criminal trial. So you’ve made a few errors in judgment. We all do. Any white-collar defense attorney worth his staggering fees will tell you all cases have negative facts. If there were no negative facts, there would be no case. Address them up front or they may come to haunt you. Understanding all the unadulterated facts enables your lawyer to tell a coherent and compelling story in court.
Conversely, often the government does not know all of the facts. Agents and prosecutors put together a story that makes sense to them, but might strike you as creative writing. Bruce Cutler, successfully defending John Gotti Sr. for the second straight time, once dramatically waved the government’s indictment in front of a spellbound jury as if it were a turd, mocking, “This is nothing but a screenplay!”
There will always be facts that undermine the prosecutors’ theory.
Notable white-collar defense attorneys will also stress no conviction is inevitable. Powerful, maniacally driven CEO’s might crash and burn, but how that plays out in court is often unpredictable. Take HealthSouth CEO Richard Scrushy. He walked in 2005 after being found not guilty of all 36 charges against him in a $2.7-billion accounting fraud case – despite the sworn testimony against him by his five chief financial officers.
A case like Scrushy’s highlights an adept, if simple, defense strategy: blame it all on your employees. A defendant can claim if his own corporate in-house accountants and lawyers raised no flags of improper transactions, then how could he, as CEO, possibly know? As Conrad Black quipped in his Chicago trial, the failure of his employees’ to raise questions was “not a flattering reflection on their thoroughness.” Unfortunately for Black, the prosecutor arguing the fraud, money-laundering, and racketeering case was Patrick Fitzgerald. Fitzgerald’s U.S. Attorney’s office boasts the highest conviction rate in the nation.
Risks
Since prosecutors often spend years gathering evidence, interviewing witnesses, reviewing documents, and questioning people before a grand jury before requesting an indictment, you can count on the fact that they think they’ll win the case. If they didn’t, they wouldn’t risk squandering their talent and resources.
Consequently, the biggest risk is editing your story for your defense attorney, and short-changing him in providing every conceivable form of documentation, including financial documents, internal memoranda, voicemails, e-mails, and telephone or cell phone records.
You want to be the first to inform your defense attorney of all the cold, hard facts. If the government prosecutor is the first to reliably inform your legal counsel, the potential negative consequences could be devastating.
The information in the article is not intended to substitute for the legal expertise and advice of your attorney. We encourage you to discuss any decisions about litigation with an appropriate legal expert.
This is a joke, right?
"Any short list of high-end white-collar defense attorneys should be composed of former government prosecutors. That is, lawyers who’ve “flipped,” as they say in the under-worldly language of criminal law. It’s these highly skilled attorneys who understand the prosecutorial mindset, and can anticipate the cunning strategies they’ll employ against you."
Sure, if you want to race down to the U.S. Attorney's Office, spill your guts, plead guilty and hope for a reduced sentence, a former prosecutor is perfect.
But if you want to fight your case, hire a lawyer who has made a career out of keeping people out of prison, rather than putting them in; who has always been on the side of the underdog; and who understands the prosecutorial mindset not because he's a ("former") prosecutor but because he's spend years fighting the government and seen and countered the worst they can throw at him.
Wouldn't it be a good idea for people with actual qualifications to be the ones to write consumer guides?
Mark Bennett – July 14, 2009 , 11:16 PM
Who is Bruce Cutler, Mr. Expert? Who is John Carroll? Or any of the myriad and well-known ex-prosecutors who've successfully defended their high-profile clients? To think they've ever recommended anyone to run down to the U.S. Attorney's office is buffoonish. Get a life.
Robert Goethals – July 15, 2009 , 3:03 AM
Not to mention former-prosecutor Ryan Blanch, partner in the most famous Manhattan White-Collar Defense Firm, and currently representing former New York Governor Eliot Spitzer:
RYAN BLANCH is the founder and lead attorney of The Blanch Law Firm. Mr. Blanch is an experienced New York criminal defense lawyer handling white collar criminal cases and other major felonies in New York. Mr. Blanch's work has been published in law review and op-ed articles for UCLA and Pace Univiersity. While studying at a nationally ranked, Top Tier Law School, Mr. Blanch was a member of Law Review and the Criminal Law Society. Prior to graduating, Mr. Blanch worked as an intern-prosecutor with both the Los Angeles and San Francisco District Attorneys' Offices. There he prosecuted hundreds of felonies at probable cause hearings in criminal court under the supervision of the District Attorney's office. He went on to continue his legal career working as a lawyer at a large New York law firm. Mr. Blanch has appeared as a criminal law commentator on FOX News Live. He has been covered in Page 6 of the NY Post and his cases have been featured in the Wall Street Journal and The New York Times.
Joseph Schiavone – July 15, 2009 , 3:31 AM
You're forgetting the most famous (and successful) prosecutor-turned-white-collar defense of all time! Gerry Spence!!!
Jonathan Miller – July 15, 2009 , 3:41 AM
I'll call your Blanch, your Cutler, and your Carroll, and raise you a Racehorse Haynes, a Dan Cogdell, and a Dick DeGuerin.
I wouldn't know John Carroll from Robert Goethals (is this the "screenwriters giving advice on topics about which they know nothing" site?). There's a John Carroll from Philly who's a member of the National Association of Criminal Defense Lawyers.
I don't know Blanch, either, but if that blurb is correct, he was an intern handling PC hearings while he was in law school, which is a far cry from prosecuting cases.
Cutler has an excellent reputation in the community (of criminal defense lawyers, not just of screenwriters), as, of course, does Spence. Neither is a former AUSA ("Government lawyer"), and I'm pretty sure Gerry didn't prosecute white-collar cases as a county prosecutor in Wyoming. The "cunning strategies" they'll use against you in a white-collar case are very different than those they'll use against you in a murder case.
There are exceptions to every rule, but great criminal defense lawyers who used to be prosecutors are not great criminal defense lawyers because they're former prosecutors, but because they have lots of experience as criminal defense lawyers, they work really, really hard, and they have lots of heart.
Don't take my word for it. http://blog.simplejustice.us/2007/09/06/biglaw-th…
Mark Bennett – July 15, 2009 , 2:36 PM
[...] Here is the original post: White-Collar Defense Attorneys and the Big Fish | Bankruptcy Law … [...]
AutoB » Blog Archive » White-Collar Defense Attorneys and the Big Fish | Bankruptcy Law … – July 15, 2009 , 11:12 AM
A District Attorney counts as government prosecutor, don't you think? Cutler started off as an Assistant D.A. in Brooklyn, then became the office's top homicide prosecutor. The same Bruce Cutler who won 3 straight acquittals for John Gotti Sr. Call Bruce and ask him for his opinion.
Uh, then there's Johnnie Cochran. The former L.A. District attorney who was O.J.'s first choice to get him off the hook. Lemme see. There's James Neal, the U.S. attorney who prosecuted Jimmy Hoffa & the Watergate crooks, who has since made zillions as a criminal defense attorney, successfully defending Dr. Nick (Elvis' doctor) and John Landis (oops, he's a Hollywood director!) from murder raps. And on, and on….
Robert Goethals – July 15, 2009 , 5:54 PM
John K. Carroll's the former U.S. attorney who took down Michael Milken. He's enjoyed a hugely successful career as a white-collar crime defense attorney in Manhattan since he left government in the early 90s.
Robert Goethals – July 15, 2009 , 6:29 PM
Albert Krieger, David Gerger, Clarence Darrow (since you've opened up the world of dead lawyers), Earl Rogers . . .
This game is diverting, but let's get back to the premise to which I was responding: that big fish in white collar cases should hire only former government lawyers to defend them because they can anticipate the prosecutors' "cunning strategies" (that makes me smile!).
In the Brotherhood, "government" is usually used to mean "U.S. Government". The argument that former white-collar prosecutors (mostly AUSAs) make better white-collar defense lawyers would require a more subtle rebuttal than the argument that former prosecutors of all sorts make better white-collar defense lawyers. A former state murder prosecutor (ADA) can't, by virtue of that experience, anticipate a federal white-collar crime prosecutor's cunning strategies. They're entirely different milieus. I've got more experience dealing with federal white-collar crime prosecutors' cunning strategies than any state court prosecutor in Texas. If one of them leaves the office, he's not magically suited to defending anything at all, least of all a case of a sort he never handled as a prosecutor. But we'll go with the second thesis—that former prosecutor=best white-collar defense lawyer—if you prefer.
I'm not a screenwriter; I'm just a criminal defense lawyer with 14-plus years experience successfully fighting the government for ordinary people. I won't comment on lawyers I don't personally know—John K. Carroll may have successfully tried more cases as a defense lawyer than I have—but I've read the BigLaw "script" for defense of a white-collar case, and it doesn't involve putting the government to its burden. While the idea that fame or fortune equates with skill or talent may be true in the world of screenwriters, it's by no means true of criminal defense lawyers. Old wives' tales like "hire a former prosecutor" contribute to the fame and fortune of the former prosecutors. http://blog.simplejustice.us/2009/07/13/the-media…
Every outstanding criminal defense lawyer I can name who was never a prosecutor refutes this argument.
Former AUSA Ira Sorkin's laydown defense of Bernie Madoff doesn't refute it, but it should at least give one pause before running to the nearest ex-prosecutor for a defense.
That some former prosecutors do a good job fighting for their clients (which I'll gladly concede; I'll even give you "many") doesn't mean that they do a good job fighting for their clients _because_ they are former prosecutors. So far, nothing you say supports the premise, unless you believe that post hoc means ergo hoc.
Bottom line: if you're shopping for a criminal defense lawyer for a shoplifting case, a murder, or a billion-dollar fraud, don't ask a screenwriter. Ask criminal defense lawyers who they think is best for your particular case, talk to as many of those candidates as you can stand to, and then pick the lawyer you trust.
Mark Bennett – July 15, 2009 , 8:12 PM
Instead of all the excitable breast-beating and claims of what a superior legal mind you possess, why don't you simply take the gentleman up on his recommendation? Ask Bruce Cutler for his opinion of the entire piece.
Karen Bean – July 16, 2009 , 3:01 AM
He would be a better source of information than a screenwriter, but why would Bruce Cutler be a better person to ask than any other experienced criminal defense lawyer?
Mark Bennett – July 16, 2009 , 3:04 AM
Put more bluntly, I don't need to ask because I know the answer.
Mark Bennett – July 16, 2009 , 3:14 AM
According to the records of the New York State Bar, Robert Rava isn't an attorney at all. Unless he's been prosecuted multiple times for white collar crimes, what could he possibly know about the topic?
Patrick – July 16, 2009 , 2:40 PM
Gee, Pat, if nobody knows anything about attorneys but attorneys, you got quite a racket going on. Whadaya tell conscientious journalists, big guy? Much less clients. (If you have any.) "You know squat?" Post that on your "Diary of a Dilletante" blog.
Chris Poppe – July 17, 2009 , 3:59 AM
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why don’t you simply take the gentleman up on his recommendation?
http://nndb.net/ – November 20, 2010 , 11:25 PM
Unless he’s been prosecuted multiple times for white collar crimes, what could he possibly know about the topic?
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