I have had the privilege of serving the Department of Justice as both a U.S. attorney and an assistant U.S. attorney. After both tours, I returned to partnership at my current law firm.
During the reentry process I’ve learned how to leverage the perspective I gained as a federal prosecutor to advise clients on the other end of government investigations. The importance of understanding their business and mission and the ability to explain all of your clients’ options, including self-disclosure and cooperation, as well as manage costs and expectations effectively can’t be overstated.
Here’s why you should keep these considerations in mind when you switch hats from the government’s to your client’s trusted adviser.
Understanding Your Client’s Business
In an ideal world, prosecutors should be required to spend time working in the private sector with corporate clients. Unfortunately, too many prosecutors have limited to no experience working the private sector. As a result, there can be a tendency by prosecutors to view companies as simply monolithic money-making enterprises, as they wield their significant law enforcement authority.
To overcome this potential blind spot, it is important that you take the time to learn your client’s business and mission. Doing so will allow you to vigorously and effectively represent the client’s interests before the enforcers.
Shortly after I left the DOJ for the first time, I had the opportunity to work with a pharmaceutical company that was conducting innovative research focused on developing a new medicine to treat a life-altering disease.
At the time, the company was also facing a significant DOJ criminal and civil investigation as to off-label promotion of an unrelated medicine that had been on the market for years. Recognizing that the monetary penalties sought by the government would crush the company and cause the valuable research to be forever lost, the case team took the time to learn and teach the prosecutors about the client’s research operations and its mission.
This effort ultimately led to lifelong prosecutors wisely exercising their discretion in a manner that allowed the company and its research to survive and continue.
Avoid Government Speak
Coming out of government you will still have your credentials—even if figuratively, as you surrendered your DOJ identification upon walking out the door. You will also have tattooed on your brain the mantra of prosecutors that “self-disclosure and cooperation” can lead to leniency. While this may ultimately be true depending on the facts of a given case, clients hire outside counsel to help solve their business problems.
In short, your lens must change quickly.
As you navigate the issues presented by a government investigation, you will be dealing with corporate boards, CEOs and other executives, management, supervisors, sales people, and a wide range of other types of employees.
While self-disclosure and cooperation may ultimately be the landing spot, business people want to understand all of the available options so they can properly evaluate the risks and benefits of pursuing a certain course of action in response to a government inquiry. Here, former prosecutors are uniquely qualified to explain to a client what the government really cares about in the context of the client’s past and current business activity.
Over time, I have found that these conversations often go better when you approach them with empathy, listen to all the facts, and respond with answers that convey a clear sense that all options are to be explored in order to avoid further investigation, prosecution, and sanctions.
This effectively builds trust with the client and enables you to conduct a proper internal investigation that allows you to understand the client’s business and evaluate the true risks facing the business, so that effective solutions to business problems are achievable.
Sometimes, that “self-disclosure and cooperation” mantra may not be the best business solution, and the company needs your insights to figure that out for itself.
Cost Management Matters
In recent years, electronic discovery has exponentially increased the costs of internal investigations and related litigation as in-house counsel face ongoing and relentless pressure to manage the bottom line of their legal departments.
The proliferation of new privacy laws throughout the world, such as the General Data Privacy Regulation, has only made this more challenging for counsel to the business. When prosecutors—who do not fully appreciate the costs associated with collecting, reviewing, and producing documents—issue broadly worded and overreaching subpoenas and civil investigative demands, cost problems for the client are exacerbated.
By reflecting on what you really wanted in your prior life when you admittedly issued broadly worded subpoenas and civil investigative demands, you can effectively assist your client in an effort to narrow the scope of the government request.
Often, a simple phone call to the assigned prosecutor can get that process started with the understanding, of course, that scope issues may need revisiting as a case develops.
Additionally, you can tap into your former experience to scope out an internal investigation response that does not require “boiling the ocean” to identify the documents, emails, and witnesses that you need to understand and analyze for purposes of providing business solution options to the client and in-house counsel.
When you manage costs effectively and present real business solutions to the client for consideration, you often help make in-house counsel look good to those to whom they report. This is true even in cases where ultimately entering into a resolution with the government makes the most and best business sense.
While no client likes to be a repeat player when it comes to the government, your government informed experience can help keep you on the client’s speed dial for future needs such as government compliance work. Done correctly, you really can say, “I’m from the government and I’m here to help.”
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Zane David Memeger is a partner at Morgan Lewis in Philadelphia. Memeger, who served as the U.S. Attorney for the Eastern District of Pennsylvania for nearly seven years, handles a wide variety of litigation matters, including government investigations, internal investigations, and white collar matters involving major representations across all industries.