At Above The Law, my fellow curmudgeon Mark Herrmann gives us a gift that us groundlings in criminal defense would otherwise never receive, the wisdom of star prosecutor Patrick Fitzgerald, who has left the government payroll to serve the clients of Skadden Arps.
We had the good fortune to have Patrick Fitzgerald — the former U.S. Attorney for the Northern District of Illinois who recently joined Skadden — speak to my company’s global compliance conference last month.By “my company,” Mark means Aon, the global insurance, risk management giant. Certainly, Fitzgerald’s insider insight should prove hugely helpful to Aon, helping it to assess and address its clients’ direction should it become the target of a government criminal investigation or prosecution. Now that Fitzgerald has added about ten zeroes to his paycheck, paid for by the kind corporations under the Skadden flag, what wisdom does he bring to the forefront?
First, if you’re responding to allegations made by a whistleblower, don’t assume that you’ll avoid trouble by explaining that the whistleblower is nuts. Whistleblowers may often be nuts — it takes a certain personality to blow the whistle — but the fact that you’re nuts doesn’t necessarily mean that you’re wrong. Even a stopped clock tells the right time twice a day. It’s okay to explain briefly to prosecutors that the whistleblower is nuts, but the heart of your presentation must respond to the allegations.
So nuts doesn’t equal wrong? True, but not exactly new. Maybe the white collar “specialists” at Biglaw never crossed a junkie snitch, but for the rest of us, this is pretty 101 stuff.
Second, for many corporate criminal investigations, the company’s misconduct may be less important than how the company responded to the misconduct. If you have a few hundred (or a few thousand, or a few tens of thousands, or more) employees working in your organization, then some of those employees won’t follow the rules. That’s inevitable, and prosecutors understand it. What distinguishes good corporate citizens from bad ones is often not the misconduct itself, but how the corporation responded when it learned of the misconduct.
Ah, now we’re getting a bit trickier. So the secret is to presume guilt before the government does (or just pretend, for the sake of pleasing the fine men and women in federal buildings) and throw a few people under the bus to satisfy their bloodlust? Perhaps we could give this trick a cool name, like “when baby prosecutors say jump, corporate titans ask “how high”?
Third, Fitzgerald suggested providing a candid, comprehensive narrative when you meet with prosecutors. Too many companies, says Fitzgerald, hold their cards close to the vest, not wanting to give prosecutors information unnecessarily. That leaves the prosecutors to rely exclusively on the FBI’s version of the facts, which probably won’t paint the company in a great light.
The last thing a multinational corporation wants is to have a prosecutor rely on what the FBI says, so Fitzgerald’s solution is to confess to snatching the Lindbergh baby up front?
Finally, Fitzgerald said that many defense lawyers overplay the possibility that a conviction would cause the company to be debarred from doing government work, which would force the company into bankruptcy and leave thousands of unemployed workers pounding the pavement. Fitzgerald said that prosecutors do care about inadvertently crippling big corporate employers, but many debarment regulations are permissive.
One thing every corporate exec should know is that they can count on the kindness of the government to handle debarment from government contracts or bankruptcy. Prosecutors are sensitive people, and they would never be unduly harsh. They’re from the government, so you can trust them.
These words of wisdom probably cost Aon some big bucks, huge bucks maybe. After all, star prosecutors turned
defense lawyer former prosecutor don’t come cheap. This is a rare opportunity to obtain such insight, only offered to such high-fliers as Aon and the clients of a firm like Skadden.
So let’s review: If your corporation and its executives become the target of a government investigation or prosecution, Patrick Fitzgerald tells you to take these steps:
Cave in and trust the largesse of the government to provide your salvation
That’s about $10,000,000 worth of legal advice, courtesy of Fitzgerald.
But you didn’t commit a crime? But the government prosecutors, none of whom have ever run a company, functioned in a corporate hierarchical structure, been responsible for the actual creation of anything, dealt with foreign cultures?
So what? You aren’t paying attention. The government can’t be wrong. The government can’t lose. It’s the government! Aren’t you listening?
Sadly, most boards of directors do listen, and embrace what Fitzgerald has to say. They don’t want trouble, and the easiest way out of it is to put as many millions (and maybe billions) of dollars on the table as needed to make their government accusers happy. They will feel badly about having to take loyal, trusted, hard-working corporate executives and toss them mercilessly under the bus as a sacrifice to the prosecution gods, but your life is the price of capitulation, proving to the mighty prosecutors that you are cleansing your corporation of the disease. So sorry about your family, your future, but they must save the corporate body by excising as many limbs as the government demands.
There is no room for concerns like innocence or that government prosecutors lack any grasp of the conduct in question. Just be good, little corporate citizens and do as the government demands, no questions asked and no challenge offered. Comply.
Patrick Fitzgerald is available for future speaking engagements, but you better have a whole lot of money to pay for his critical advice. Then again, isn’t it worth it? After all, he’s a star.
Update: I have learned that Patrick Fitzgerald’s talk to Aon was not a stop along the paid speaker circuit, but in fact given without charge. This does not mean that he is available for federal defender offices and children’s birthday parties, but my assumption that this was a paid gig was wrong and it’s incumbant upon me to correct my error.