By Dan Portnov
In certain legal (nerd) circles, coining a phrase or term of art is one of the surest ways to achieve immortality – think Tim Wu’s first use of “network neutrality” in a 2003
journal article or Justice Felix Frankfurter’s opinion in Rochin v. California holding that the certain police methods “shock[ed] the conscience.” And soon we may have Seth Levine to thank for the term “Brady Laundering.”
Here, Levine leveled his accusation on behalf of his client, Anthony Blumberg, in the midst of an evidentiary hearing into the relationship between the government and counsel for Blumberg’s former employer, ConvergEx Group, suggesting the former took pains to avoid uncovering Brady material by outsourcing the bulk of the investigative work to the latter. He further argued that ConvergEx achieved “extraordinary cooperation” status as a result of the company working so closely with the government that it effectively became a member of the prosecution team. Thus, ConvergEx also had the obligation to turn over Brady materials within its possession related Blumberg.
The four-day evidentiary hearing, which began on March 12, 2018 and will (hopefully) culminate on May 15, spotlights several important principles that counsel should consider during DOJ or SEC investigations where cooperation credit is sought.
If you are new to white-collar work, you will quickly hear about the Foreign Corrupt Practices Act or FCPA. For you seasoned attorneys out there, you may feel like you’ve heard too much about it.
But here’s the thing: you can always learn more.
And I know just the place.
Join the FCPA Professor, AKA Mike Koehler, in Music City, USA, AKA Nashville, May 3-4, 2018, for the FCPA Institute.
The government filed its opposition to Michael Cohen’s motion for a temporary restraining order today. I wrote earlier this week about the search warrant and noted that there would be a court battle coming.
Well, here it is.
Oddly, the public docket has the government’s redacted opposition but does not have a docket entry for the initial TRO motion or for any motion to intervene by President Trump. (If anyone has them, please send them my way.)
Trump would certainly have standing to intervene if it is his privileged documents at issue. There are very limited circumstances when someone has standing to challenge a search warrant (someone other than the person from whom the items were seized, that is). A client in the attorney-client relationship has standing. We’ll see more from President Trump, I’m sure.
And not just Tweets.
From the reports of the court hearing today, it appears that there will be additional filings and the judge made no rulings. But I’ve read the government’s filing, and I have a few initial takeaways:
First, as widely reported, the filing makes clear that Cohen is the target of a criminal investigation. This doesn’t mean that the FBI didn’t also seize information related to other subjects of the investigation (ahem), but the filing suggests that evidence of Cohen’s own wrongdoing was the main focus.
On April 9, 2018, news broke that the FBI had raided the office of President Trump’s attorney, Michael Cohen.
Apparently the search was the result of referral from Special Counsel Mueller’s team to the SDNY U.S. Attorney’s Office.
When I saw the news, my first thought was “wow, the prosecutor had to jump through a lot of hoops to get approval of that warrant.”
There are a lot of procedural hurdles that must be overcome to obtain approval to search any lawyer’s office, never mind the political minefield involved in raiding the office of the sitting President’s lawyer.
It’s worth noting that the FBI does not normally raid the offices of lawyers. The files and emails held by a lawyer are mostly protected by the attorney-client privilege and seizing them creates all sorts of issues for the FBI.
There are two DOJ relevant policies here–one governs if Mr. Cohen IS the subject of the investigation and one governs if Mr. Cohen is NOT the subject of the investigation.
Let’s take a quick look at each of them.
By Sara Kropf
Paul Manafort recently filed a motion to compel the production of the affidavits used to support the Special Counsel’s search warrants in his case. To someone unfamiliar with criminal law, that may seem odd. The defendant must know why the government executed a search warrant, right?
Every once in a while, my clients have some suspicions about why the search warrant was executed but, more often, they are clueless. After the initial shock of the search warrant has worn off, my clients always want to know what the government was looking for—and why.
That’s not an easy thing to find out.
By Sara Kropf
In Part I of this series, I listed my first six tips for preparing a nervous witness (or any witness, really) for a voluntary government interview. Those tips involved a lot of the mechanics of preparing your client for what the interview will look like.
Below is my second set of tips. They run the gamut from the obvious (tell your client to tell the truth) to the less-than-obvious (beware the speakerphone).
Feel free to add any tips you have in the comments. Who knows, maybe there will be a Part III to this series down the road.
Seven: Reassure your client that it’s okay to say “I don’t know” or “I don’t remember.” I’ve found that the more sophisticated the client is, the more difficult it is for him to admit that he can’t answer a question. But it is critical that clients don’t speculate or guess at the answer, since the government may have a document that conclusively establishes the answer—and giving an incorrect answer is simply fodder for a false statement charge.
by Dan Portnov
Let’s say that you or your company find yourselves in the unfortunate position of receiving a document request by the Securities and Exchange Commission (SEC) with limited resources for representation. You’ve retained a moderately-priced, hyper-efficient securities enforcement lawyer (a “unicorn”). Still, the Commission’s initial document request demands every document, every draft, every e-mail created by you since the beginning of time.
You’ve got nothing to hide so your first instinct is to cooperate with the request. Your lawyer informs you that she will need to engage a vendor to harvest data from your server(s), task junior lawyers to review each document for responsiveness and privilege, then produce the documents pursuant to the SEC’s exacting data delivery standards. This is going to cost a small fortune, but, once this arduous task is complete, the real preparation and advocacy can begin.
This is a frustrating position in which to find yourself – spending thousands or more just to put documents in the hands of the Commission. However, this is not the only option. Enter the Purposeful Production Without Privilege Review (PPWPR)…
Representing a witness during a voluntary interview or proffer session with the government requires preparation. As the lawyer, you will get ready by reviewing documents, talking to other lawyers in the joint defense group about anticipated questions and working through those substantive topics with your client.
But you must also prepare your client for the nuts and bolts of what will happen during the interview. This preparation is just as important as the substantive part. Even a well-prepared client can fall apart during the interview if she faces an unanticipated environment.
Trust me, you don’t want to watch your client fall apart during the interview. I’ve been there. It ain’t pretty.
Some of these tips are more or less applicable depending on whether your client is accustomed to being the center of attention at a meeting or to answering difficult questions from a hostile audience.
For a CEO, walking into a large conference room filled with people staring at her will not be excessively intimidating. For a small-business owner or someone who works in a blue-collar field, simply walking into the room will be (at best) uncomfortable or (at worst) terrifying.
Spending some time preparing the witness for what will happen that day will help tamp down these fears and, hopefully, allow your client to focus on answering questions truthfully.
Here are the first 6 of my top tips for preparing a nervous witness for a voluntary government interview. (I’ll write some other time about preparing for a less-than-voluntary interview, such as a cooperation session by a person pleading guilty.)
By Dan Portnov
Last week, Sara wrote about Liff v. Office of Inspector General for the U.S. Dep’t of Labor, et al., a government contractor’s unsuccessful suit against the Department of Labor and its Office of Inspector General (OIG) for the latter’s publication of a non-public investigative report. Her exceptionally well-written analysis serves as the jumping off point for a look into an OIG’s investigations of private entities.
(For a summary of OIG investigations into federal employees, check out Sara’s 2017 post, retroactively called Part I, here. Warning: pulling back the curtain on OIG investigations will be a multi-blog post endeavor, so buckle in.)
By Sara Kropf
Office of Inspector General—or OIG—investigations can have wide reaching consequences. I’ve written before about the lack of procedural fairness surrounding these investigations.
Now, you might think that OIG investigations affect only federal agency employees, but that’s not the case. OIGs can investigate people outside of the agency, including federal government contractors.
A negative investigative finding about a government contractor can mean that contractor doesn’t win any more contracts with the feds. This is a very big deal for the contractor and could spell the end of her business altogether.
One outside contractor who was the subject of a negative OIG report about his company decided to fight back.
Stewart Liff and his consulting company sued the Department of Labor and its OIG (“DOL-OIG”), as well as the Office of Personnel Management (“OPM”) for the reputational harm and loss of government contracts resulting from the publicized report.
The DC Circuit said no way. It reversed the denial of the dismissal of the case.
(I apologize in advance for the number of acronyms in this post. It’s a very DC post.)