GCs Don’t Wanna Play Junior G-Man

A collective hiss from a banquet hall full of lawyers this morning summed up a top theme of the ABA’s white-collar conference, now in progress at the St. Francis hotel: these guys don’t like it when you ask their clients to waive attorney-client privilege.

Everyone’s pretty worked up about one of the government’s top white-collar priorities: trying to get companies to hire lawyers and do internal investigations when they suspect workers of wrongdoing, then turn over the goods to the feds. The idea is that the alternative would be the Justice Department getting around to it on its own and indicting the whole company when management could’ve just ratted out the few bad apples.

Speaking on a panel with several other lawyers, former Deputy Attorney General James Comey — the current GC of Lockheed — got a healthy dose of wrath from maybe a thousand defense attorneys when he talked about the government’s preference for companies to FedEx their findings on employees’ potentially illegal behavior to Washington.

Those hisses were reinforced with a second discussion on internal investigations. Crushing their pantsuits and wrinkling their worsted wool, about 200 attorneys crammed into a smaller room — sitting on the floor and squeezing into corners — to hear U.S. Attorney Kevin Ryan and several other lawyers discuss issues of privilege.

“Make no mistake about it. You don’t have to waive. You don’t have to cooperate,” Ryan said, adding that his office has never asked a company to waive privilege and turn over an internal investigation.

Jan Handzlik, a partner at Howrey who defends corporations, disagreed with Ryan. By encouraging investigations and giving an incentive for companies to waive privilege — and stop paying their employees’ attorney fees — the government “is getting through the back door what it knows it can’t get through the front,” he said.

That approach, he added, forces a company’s lawyers into a policing role. “It turns general counsel and outside counsel into junior G-men,” he said.

While the debate will continue, Handzlik made one point — albeit a sarcastic one — about the government strategy that everyone at the conference seems to agree on: “It’s not all bad,? he quipped, “because it requires companies to hire many more private counsel.?

Justin Scheck

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One Response to “GCs Don’t Wanna Play Junior G-Man”

  1. thoraldtun Says:

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