Here are 10 things that could prevent a criminal problem. They are taken from real law practice over the years and made generic. It is not possible to identify any client from these descriptions, but one way or another they have happened to corporate officers and companies who were ill-prepared for the experience of a criminal case. If there is value here, it is because preventative law is the best law.
These reminders can help a client avoid criminal exposure.
Be on the lookout for:
- Advice from a lawyer that something is illegal but the law is in flux and a lot of companies are doing it. The last part does not sound to me like legal advice. Put in perspective, it creates a dangerous atmosphere for decision-making.
- Financial arrangements that no one except the creator can understand. If a prosecutor does not understand the arrangement, he or she will suspect it. During the five years I served as a federal prosecutor, I had no business experience of any kind. This is not uncommon, and the prosecutorial hostility to business arrangements can come as a surprise to the client.
- Business dealings, particularly sale arrangements, that seem normal but are forbidden by counter-intuitive, even obscure, regulations and laws. The most dangerous reaction to these regulations and laws is the conclusion, “That is not aimed at us.”
- Email chatter, especially to and from the legal department. Privileges are melting away in case after case, making email a very inappropriate and even dangerous medium.
- Failure to appreciate what a target the company and the people in it are. High salaries can be gasoline on a prosecutor’s decision-making fire.
- Not recognizing or being aware of new Department of Justice enforcement initiatives. Suddenly and with little warning, the Department begins a new enforcement initiative. Prosecutors are assigned. Cases will be made. The prosecutors want to show results. If you hear yourself saying, “They would not prosecute people like us,” give it a careful, additional look.
- Allowing the wrong person to irritate a key regulatory agency that also has criminal statutes to enforce. People in agencies are human and when irritated can become a direct threat.
- Advice to the board of directors from a civil lawyer with gravitas who is addressing an unusual problem with criminal implications. Civil lawyers can rarely forecast how prosecutors think or what the real risks are.
- Situations in which the corporate income from the practice is great and it is difficult to tell a high official in the company, “We can’t do that.”
- The old unreliable, “We have done this forever.”