Want to be a White Collar Defense Lawyer? This is What My Practice Looks Like

Want to be a White Collar Defense Lawyer? This is What My Practice Looks Like

Having spent most of my nearly twenty-year legal career as a white collar litigator in Biglaw and as a federal and military prosecutor, I am frequently asked by law students and young attorneys what my day-to-day work consists of and how I navigated my practice in this direction. So, being on paternity leave this week and having a bit of time each evening as I watch over our new arrival, I thought I would take the opportunity to lay out the areas in which I specialize as a White Collar Defense and Investigations Partner at Cadwalader. It is a practice I very much enjoy and a team of partners and associates that are incredible to work with. Nearly every matter brings new issues, a diverse mix of clients, and exposure to a wide variety of federal, state, and international regulators and law enforcement agencies. Hopefully this insight is helpful to those considering law school, law students, and junior attorneys who are getting started and are potentially interested in this area of the law.

Major Practice Areas

While litigators pride ourselves on being able to handle any type of matter, the reality is that over the course of a career we fall into specialties (intentionally or not) based on a number of factors. This can include what types of cases you are staffed on early in your career, what types of government enforcement and regulatory actions are hot while you are coming up the ranks, and your specific educational background and work experience. While I have handled my fair share of pure civil litigation and arbitration cases (both as plaintiff and defense counsel), most of my work involves advising clients that are either facing government investigation or prosecution, or that are seeking advice on preventive compliance matters in one or more of the following areas.

Cybersecurity and Data Privacy

As a relatively new area of law, cyber is very active right now as companies work to understand their legal obligations to safeguard their customers’ and employees’ personal information, how data may be utilized and shared, and what to do in the event of a breach. In the United States there is no national cybersecurity or data privacy standard, so clients must navigate a variety of federal regulators and standards (several of which are industry-specific), along with fifty different state data breach laws. Ransomware and other types of cyber-attacks are becoming more prevalent and destructive and show no sign of slowing down. To make matters more complicated, the European Union (EU) just enacted a comprehensive new data protection regime called the General Data Protection Regulation (GDPR), which can impact U.S. companies that solicit customers and process personal data of individuals residing in the EU. As a result, a significant portion of my practice in the past few years has involved developing cybersecurity compliance programs and, for those clients who are the unfortunate victims of a data breach, dealing with regulators and law enforcement (including the Federal Trade Commission and the Federal Bureau of Investigation), complying with customer notification requirements, handling resulting customer and shareholder litigation, and (for publicly-traded companies) determining whether disclosure to the investing public is necessary.

Foreign Bribery and Corruption

The Foreign Corrupt Practices Act (FCPA) has been law since the 1970s, but has only been vigorously enforced by the U.S. government for the past fifteen years or so. The FCPA contains two primary provisions. First and foremost, it prohibits the payment of bribes by U.S. persons and companies to foreign (government) officials in exchange for obtaining or retaining business (such as government contracts) or for some business advantage (such as tax benefits). Second, it requires U.S. publicly-traded companies to implement internal controls for the purpose of maintaining accurate accounting books and records. In general, the anti-bribery provisions are investigated and prosecuted criminally by the Department of Justice (DOJ), and the books and records provisions are enforced civilly by the Securities and Exchange Commission (SEC). Not to be outdone, the United Kingdom recently enacted the UK Bribery Act 2010 which in several ways is more strict than the FCPA. Similar to cyber, FCPA client matters tend to fall into one of two categories: developing, implementing, and testing compliance programs that are customized to the client and its industry; and defending the client against a government investigation or prosecution.

Money Laundering and Terrorist Financing

At a high level, money laundering is the process of moving the proceeds of criminal activity into the economy through transactions designed to camouflage its origin, such as legitimate businesses, real estate purchases, and other complex transactions. In the United States, banks, money transmitters, broker-dealers, casinos, and other financial institutions are required to help law enforcement detect suspicious transactions that could constitute money laundering or terrorist financing under the Bank Secrecy Act (BSA). Among other things, the BSA requires financial institutions to file suspicious activity reports (SARs) with a bureau of the Treasury Department called the Financial Crimes Enforcement Network (FinCEN), which collects and shares this information with law enforcement. Financial institutions that fail to file SARs due to insufficient anti-money laundering (AML) controls may have legal exposure themselves. And due to the widespread abuse in recent years of shell companies to hide the origins of financial transactions and evade taxes, regulators have implemented various efforts to improve transparency such as FinCEN’s “Customer Due Diligence Rule” which went into effect last month and requires banks to identify natural persons who own or control shell companies that open new accounts. Making this area even more fast-paced is the emergence in recent years of Bitcoin and other cryptocurrencies, which are often viewed as attractive to criminal and other illicit actors because of their ability to anonymize the individuals behind financial transactions. All this results in significant work with financial institution clients trying to keep pace with evolving laws and technologies and scrutiny from regulators both in the U.S. and overseas.

Accounting and Securities Fraud and Other White Collar Matters

Having an accounting background (I am a Certified Public Accountant as well as an attorney) I was always drawn to cases that involved serious accounting issues. Many white collar matters require working alongside forensic accountants and so it helps to have this expertise and be able to get up to speed quickly. Accounting and securities fraud cases are often before the DOJ or the SEC, and can involve individual or corporate clients. Insider trading, misuse of reserve accounts, and “channel-stuffing” (manipulating sales figures within distribution channels to improve stock prices) are all various types of matters that can arise. Each of these can be intense and fascinating cases, and no one is ever the same.

The above is by no mean an exhaustive list of the types of cases that arise. Procurement fraud, tax fraud, whistleblower allegations, economic sanctions, and national security matters are several of the other types of cases that crop up. Clients being investigated by and testifying before Congressional committees will also frequently need representation. Each of these areas requires an understanding of specific laws and regulations and experience with different government agencies.

Managing Your Career

So if these types of matters interest you, how can you go about managing your career in this direction? As you probably can tell I am a big advocate of accounting skills and suggest that, at a minimum, every litigator take an “Accounting for Lawyers” or other similar course in law school. Securities litigation and enforcement courses are also very helpful in understanding the basics behind the key U.S. securities laws and the authority of the SEC. Having at least one course in individual federal income tax can also be useful to develop a basic understanding of the Internal Revenue Code. Obviously, black letter law courses in criminal law, criminal procedure, evidence and constitutional law are key, and law schools are also becoming increasingly creative in more advanced offerings. So while there were virtually no courses that covered in depth the FCPA, BSA or other white collar statutes when I graduated in the late 1990s, law schools now make more specialized courses available and it makes sense to take advantage of them.

Work experience can also be extremely helpful in specializing your legal career toward white collar litigation. Those with pre-law school experience as auditors, forensic accountants, regulatory analysts, compliance specialists, law enforcement, or with various governmental agencies or on Capitol Hill will have a definite leg up on graduating law students without such experience. However, if you do not have prior work experience (as I did not), there are plenty of opportunities during law school to gain valuable experience to help bolster your resume. During the summer between college and law school I was a full-time Research Clerk (GS-4!) in the Enforcement Division of the Philadelphia District Office of the SEC, which was an incredible experience and helped put me on the path to what I do today. During law school I also completed a part-time internship (for credit) at an appellate office of the Internal Revenue Service on Long Island, which also was terrific both in gaining experience and contacts. I have no doubt that these experiences helped make me more competitive to law firms upon graduation, and showed a consistency in my career path toward white collar litigation. And, of course, there are opportunities to serve as local, state, military, and federal prosecutors and regulatory attorneys after you graduate, which can be an essential component of a long legal career.

Conclusion

One of the reasons I am such a fan of a career in the law is that there are so many different paths you can take. From large law firms to solo practices, government service, in-house, non-profits, “Big Four” consulting firms, and a host of other options, there is a wide variety of ways to move your career. For me, being a white collar litigator was always something that sounded great, but truth be told I could not tell you what exactly a white collar defense lawyer did each day until I started down that path myself. Thankfully it has worked out, and I hope that this practical insight will be of help to those who are considering this path.

If I can ever be a resource to you please do not hesitate to contact me on 202-862-2262 or [email protected].

Please note that this article contains my personal views and does not constitute legal advice. Feel free to contact me directly or follow me on Twitter.

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Susan L. Harper, Esq.

Advocacy, Law, Strategy, Communications; Treasurer, New York State Bar Association

6 年

Excellent article, Joe! Congrats on your new bundle of joy!

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