Inside Straight: Pat Fitzgerald On Handling Prosecutors
Advice for in-house lawyers on how to respond when prosecutors come a-knocking, from U.S. Attorney turned Skadden partner Patrick Fitzgerald. You're welcome!
We had the good fortune to have Patrick Fitzgerald — the former U.S. Attorney for the Northern District of Illinois who recently joined Skadden — speak to my company’s global compliance conference last month.
Let me prove that I’ve learned a little about this blogging business over the years: Before the jump, I’ll give you my personal thought or two about introducing prominent speakers. I’ll hold the good stuff — what Fitzgerald, the famous guy, said — until after the jump. (Watch this, Lat! They’ll be drawn through the jump like vultures to carrion!)
How do you introduce a prominent speaker? You can do it the usual way: He went to school, got a job, and did some fancy stuff, zzzzzzzz.
How Transactional Lawyers Can Better Serve (And Maintain) Their Clients
Or you can find something offbeat about the person. I chose to introduce Fitzgerald by saying that I was afraid that our speaker had peaked too young. He had been named one of the sexiest men alive by People magazine in 2005; how do you ever surpass that? And, also in 2005, he had received an award from Washingtonian magazine for “best performance without a script.” For most people, it’s all downhill from there.
Fortunately, our speaker managed to surpass his early achievements. And then I trotted through what must be the usual litany in a Fitzgerald introduction: Led the prosecutions of former Illinois Governors George Ryan (sentenced to five years) and Rod Blagojevich (14 years) and a bunch of others.
That was my contribution to the hour. But, you might ask, what did the famous guy have to say?
Sponsored
How Transactional Lawyers Can Better Serve (And Maintain) Their Clients
Generative AI In Legal Work — What’s Fact And What’s Fiction?
AI’s Impact On Law Firms Of Every Size
Law Firms Now Have A Choice In Their Document Comparison Software
I won’t steal all of Fitzgerald’s thunder, because he surely will be asked to speak many times in the future, and I don’t want to preempt those talks by spilling the beans here. But let me note a few highlights:
First, if you’re responding to allegations made by a whistleblower, don’t assume that you’ll avoid trouble by explaining that the whistleblower is nuts. Whistleblowers may often be nuts — it takes a certain personality to blow the whistle — but the fact that you’re nuts doesn’t necessarily mean that you’re wrong. Even a stopped clock tells the right time twice a day. It’s okay to explain briefly to prosecutors that the whistleblower is nuts, but the heart of your presentation must respond to the allegations.
Second, for many corporate criminal investigations, the company’s misconduct may be less important than how the company responded to the misconduct. If you have a few hundred (or a few thousand, or a few tens of thousands, or more) employees working in your organization, then some of those employees won’t follow the rules. That’s inevitable, and prosecutors understand it. What distinguishes good corporate citizens from bad ones is often not the misconduct itself, but how the corporation responded when it learned of the misconduct. Did you conduct an independent investigation, or did you let the wrongdoers investigate themselves? Did you punish misconduct appropriately? Did you put in place controls to insure that the problem wouldn’t repeat itself? Prosecutors can understand rogue employees doing illegal stuff, but they can’t forgive corporations that sweep misconduct under the rug.
Third, Fitzgerald suggested providing a candid, comprehensive narrative when you meet with prosecutors. Too many companies, says Fitzgerald, hold their cards close to the vest, not wanting to give prosecutors information unnecessarily. That leaves the prosecutors to rely exclusively on the FBI’s version of the facts, which probably won’t paint the company in a great light. Instead of concealing facts, Fitzgerald suggested telling a complete story — “we fired the bad executive,” “the guy was actually a good executive, but he got in way over his head,” “the allegations are simply untrue; we didn’t do it,” or whatever — so that the prosecutor is considering two parallel stories that can be compared to each other.
(I haven’t done much criminal defense work, but I can certainly understand corporate defendants being wary of revealing too many facts too soon. Complete transparency might work quite well with some prosecutors, but quite poorly with others.)
Sponsored
Why Do AI And Legal Professionals Make The Perfect Partnership?
Law Firms Now Have A Choice In Their Document Comparison Software
Finally, Fitzgerald said that many defense lawyers overplay the possibility that a conviction would cause the company to be debarred from doing government work, which would force the company into bankruptcy and leave thousands of unemployed workers pounding the pavement. Fitzgerald said that prosecutors do care about inadvertently crippling big corporate employers, but many debarment regulations are permissive. If a government agency has discretion whether to debar the company, the government can choose not to debar even after the conviction. A defense lawyer loses credibility by implying that conviction would automatically lead to debarment and being revealed as a liar by the prosecutor’s quick scan of the regulations.
Fitzgerald had a bunch of other suggestions too, but, as I said, I’m not going to steal all of the guy’s thunder.
If you ever have the chance to introduce Fitzgerald, you might note that he once forgot that he had cooked a lasagna, and he didn’t find it in the oven until three months later. (Google your speakers. You’ll find remarkable stuff out there.) But don’t think you’ll startle Pat Fitzgerald by noting that he’s been named one of the sexiest men alive. He’s already been clued into that one.
Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
