Is the United States soft on white collar crime?
We spend plenty of our time at the Law Offices of Robert J. DeGroot vigorously defending those accused of committing white collar crimes. We believe it is our duty as defense attorneys to do all we can in the eyes of the law to uphold their constitutional rights in court, but some people who are critical of how white collar crime is treated in the United States seem to think prosecutors could take a stronger stance on this type of crime.
One of those people is Deputy Attorney General Lisa Monaco. Monaco is a longtime veteran of the Department of Justice, and made the department’s intentions clear in an address to the American Bar Association’s National Institute on White Collar Crime back in October of 2021.
It was reported that many who watched the Deputy Attorney General speak at the virtual event took her words as a wakeup call: This iteration of the DOJ would be far more focused on monitoring, charging, and prosecuting alleged white collar crimes than previous iterations of the department were.
So, what does this mean in practice? What should people who can inadvertently find themselves at the center of white collar crime investigations be on the lookout for?
Monaco — who is second in command at the Department of Justice, just behind Merrick Garland — laid out a five-bullet overview of what corporations, criminal defense attorneys, and their clients should be considering as this new focus on and approach to white collar crime comes to fruition.
Here are those five points, in her exact words, as well as our interpretation of the subtext of these statements.
“Companies need to actively review their compliance programs to ensure they adequately monitor for and remediate misconduct—or else it’s going to cost them down the line.”
Our take: Essentially, what we’re interpreting here is that Monaco is saying, “Listen, corporation XYZ, the buck stops with you. It is your responsibility as an organization to have compliance programs in place, but what’s more, you need to ensure that you’re regularly revising them as the marketplace evolves, and that you’re appropriately reporting misconduct when it occurs. And if you don’t, we will, and we’ll do so harshly.”
“For clients facing investigations, as of today, the department will review their whole criminal, civil, and regulatory record—not just a sliver of that record.”
Our take: This is an attempt to identify and establish a pattern of behavior, one that can potentially be used to establish intent, as well as identify a potential lack of remorse for alleged misconduct. This, if done successfully, could mean harsher sentencing, bigger fines, and other negative consequences for those accused.
“For clients cooperating with the government, they need to identify all individuals involved in the misconduct—not just those substantially involved—and produce all non-privileged information about those individuals’ involvement.”
Our take: This basically boils down to this: Don’t try to hide anything from the US Federal Government. If you do, and if we find out that you do, then you will be charged as harshly as possible.
This is one reason why it’s so important to have a great defense team when you’ve been charged with a crime. We work closely with our clients to help them understand how crucial transparency between client and attorney truly is.
Sharing any and all information without the guidance of your attorney can jeopardize your freedom and limit your options. Make sure you’re always cooperating with authorities, but acting under the guidance of your counsel.
“For clients negotiating resolutions, there is no default presumption against corporate monitors. That decision about a monitor will be made by the facts and circumstances of each case.”
Our take: There are many ways in which you can interpret this particular statement, with one of them being, “Don’t try to use the ‘Our corporate monitor didn’t say the alleged acts were inappropriate, therefore you shouldn’t prosecute me due to their negligence.’”
Prosecutors will be looking to see how carefully a company’s system of checks and balances is monitoring for misconduct, whether or not they are negligent in their duties, if they’re appropriately monitoring for misconduct, or even if they’re involved in misconduct.
“Looking to the future, this is a start—and not the end—of this administration’s actions to better combat corporate crime.”
