Thursday, August 11 2022

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National and local regulators and law enforcement authorities continue to expand their reach in areas ranging from antitrust and environmental crimes to data security and campaign finance.

Lawyers engaged in the midst of an ongoing investigation or shortly before trial may face a unique set of challenges, particularly when law enforcement authorities seek to criminalize conduct that is commonly done by law enforcement officials. subject to civil, administrative or regulatory proceedings. However, these commitments can also create a significant opportunity to achieve a favorable outcome for the client.

As noted below, success depends on a number of factors, including identifying and managing competing law enforcement interests, effective communication with the predecessor or co-counsel, understanding potentially unfamiliar areas of the law and preparation for creative thinking regarding litigation strategy or potential resolutions. .

Identification of players

Almost all investigations offer law enforcement officers and prosecutors the option of proceeding either under state and local laws or, alternatively, under federal law. In corruption investigations, for example, the federal mail and electronic fraud laws, as well as the Travel Act (18 USC §§1341, 1343, and 1952, respectively), create countless ways for federal authorities to investigate and charge conduct that might have historically been considered a state or local matter.

Alternatively, as district attorney’s offices and state attorney general’s offices continue to develop sophisticated and specialized areas of practice, these prosecutors are well positioned to conduct long-term and more complicated investigations. As such, it is imperative to understand the overlapping (and sometimes competing) interests of federal, state, and local prosecutor’s offices. Success in removing charges from one particular office will be short-lived if those successes spark renewed interest from another prosecutor’s office.

Our recent experience defending a lawsuit in state court provided a textbook example of how overlapping jurisdictions can complicate cases. First, the district attorney denied any obligation to produce documents in the possession of a public body which had conducted a significant part of the investigation under its regulatory authority. In addition, the government’s “star” witness was scheduled to testify under a federal cooperation agreement, and the district attorney had a very narrow view of what might constitute impeachment documents in his petitions to federal prosecutors. This involvement of multiple agencies and entities necessarily created complications with discovery obligations and created a substantial practice of pre-trial motions that were typical of the challenges that arise when confronting investigations conducted by multiple stakeholders.

Coordination with existing or predecessor lawyers

Being engaged late in an investigation or on the eve of a trial necessarily requires coordination with the client’s current or predecessor lawyer. In many cases, lawyers will often have invaluable knowledge of the practices and preferences of local investigators, prosecutors and the judiciary. In other situations, the transition may be more difficult as it may be necessary to review strategic decisions made by the previous lawyer.

Communication is the key to successfully navigating these relationships. In cases where a board joins an existing team, open lines of dialogue are essential to prioritize the client’s needs and ensure that different, but equally valuable perspectives, advice on everything from witness preparation to witnessing. trial strategy and plea negotiations are taken into account. Alternatively, when the lawyer is replaced, communication is just as, if not more, vital in determining how the client has been advised to date and the state of relations with prosecutors and the judiciary.

Navigate the unusual

Operating at the intersection of federal, state, and local investigations and prosecutions often means grappling with unusual theories and rarely used laws. Accordingly, brief libraries or standard jury instructions may be of limited use. Lawyers need to recognize that government and the court may find themselves in uncharted waters, and therefore an effective lawyer will require training alongside advocacy.

In a recent case, our client was faced with a new scheme to defraud the theory and a charge of violating the criminal provisions of a technical regulatory law for which there was a prosecution reported over 15 years ago. . The scarcity of cases meant, among other things, that there was no model jury instruction to offer the court on this count. The relatively untested prosecution theory has provided strategic openings to challenge the government’s evidence of intent to violate the relatively obscure regulatory law. But, in light of the novelty of the prosecution, the court chose to proceed with caution on the legal issues, leaving a number of open questions at the start of the trial that presented an uncertainty that the defense can use to its advantage.

Lawyers engaged in the midst of an ongoing investigation or shortly before trial may face a unique set of challenges, particularly when law enforcement authorities seek to criminalize conduct that is commonly done by law enforcement officials. subject to civil, administrative or regulatory proceedings.

Go off the beaten track

State and local authorities may have more authority and fewer restrictions on how to shape a potential resolution. Charging negotiation and plea agreements that contain specific sentence recommendations are much more readily available to state and local prosecutors than to their federal counterparts.

In addition, state and local authorities may seek to impose or may be willing to negotiate warranty terms that may be outside of what federal authorities are authorized to negotiate. In addition, the discretionary power of these officials may be particularly broad when pursuing rarely used laws for which neither they nor the judiciary have a standard “center” of expected outcomes.

Successful resolutions in these areas necessarily require creative thinking. Plea agreements, deferred lawsuits or non-prosecution agreements may be linked to collateral consequences, such as the surrender or temporary suspension of professional licenses, the agreement to resign from employment, the exclusion of certain types of contracts or the willingness to forgo specific categories of business activity for a period of time


Joining a cause as a trial lawyer can be like drinking from the proverbial fire hose. Lawyers should establish a relationship with existing or predecessor lawyers, learn about documents and witnesses in record time, appropriately manage expectations, and navigate prosecution theories and court practices that may not be part of their business. daily experience. But, as noted above, there are also significant ways in which lawyers can change the existing dynamic between the government and the accused, can engage in creative problem solving, and achieve the best possible outcome for their clients. .

Originally published by the New York Law Journal

Due to the generality of this update, the information provided here may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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