A recent article in the FT comments on the increasing number of former prosecutors being recruited by US firms in London. The article gives the example of Sasi Mallela who has recently joined K & L Gates from the Serious Fraud Office (SFO). A perhaps better known former prosecutor to make the move is David Kirk, who moved at the start of January to US firm McGuireWoods from a role as Chief Criminal Counsel at the FCA. At McGuireWoods he joins Vivian Robinson, himself former general counsel at the SFO. This trend is now well-established in the UK though still far less widespread than in the USA: the vast majority of US white collar criminal law departments comprise at least some, if not a majority of, former prosecutors.
So what is so special about former prosecutors and do they add as much value in the UK as they are perceived to into the USA?
There is no doubt that the ability to get inside the mind of a prosecutor is useful to the defence and for that reason having a former prosecutor on your team is seen to be an advantage. In the UK however, it is relatively easy for the defence to obtain that advantage simply by instructing a barrister with decent prosecution experience. At any given moment there are hundreds of criminal barristers working for prosecution agencies, either as instructed counsel on cases, or as secondees within prosecution offices. Given the current cuts afflicting publicly funded criminal work and an oversupply of highly qualified and experienced criminal barristers this represents a considerably cheaper alternative to hiring a former prosecutor.
Of course instructing a barrister who has experience prosecuting does not provide the "special access" that is the other reason often given for wanting to include a former prosecutor in your team - the ability to call up a former colleague at a prosecutors' office and get an instant step up when negotiating for one's client.
Again, it is doubtful to what extent that concept is applicable in the UK. Firstly, relationships with individual prosecutors are far more significant in the USA than in the UK. A defence lawyer in the UK will always do his best to establish a rapport with his opposite number but it is relatively unusual to come across the same individual on more than one case. This is partly because the turnover of staff at the main prosecution agencies remains very high. Added to this there is now a distinct distaste for the concept of "special access". The former director of the SFO, Richard Alderman, was seen to encourage such approaches whereas the current Director, David Green, has seen it as one of the bad habits that he is keen to stamp out. Moreover, criminal investigations in the UK far more frequently result in trials than in the USA where, consequently, negotiating the plea bargain is a major aspect of the criminal lawyer's work and skill set. In the UK this aspect of the defence lawyer's work is regarded as less important than the ability to take the prosecution's case apart.
For all this the trend for hiring former prosecutors will doubtless continue. After all, it is an easy sell to a client that he will have the benefit of such an individual working for him - whatever the reality.
Not mentioned in the article but equally a trend in recent years has been the hiring of established white collar defence solicitors by many of the same US firms in London. Nearly all of the top tier UK white collar firms have lost senior solicitors to such firms. In this trend the logic is much more sound: if you want to hold yourself out as a firm with expertise in UK white collar law you need lawyers who have actual experience defending white collar cases in the UK. For the most part though, those firms to which such individuals have gone operate as service departments offering corporate criminal law advice to the rest of the firm, rather than freestanding criminal law departments attracting work in their own right. Few are engaged in any of the major criminal litigation currently underway in the UK.
Whether this "brain drain" to US firms continues depends very much on the future of white collar criminal law in the UK. At present the market for this work in the UK is a tiny fraction of the equivalent market in the USA. Although the introduction of Deferred Prosecution Agreements later this month may mark the start of an increase in white collar criminal investigations - particularly cases involving corporate criminal liability - most commentators agree that the volume of cases in the UK will never approach the levels in the USA.