Ed. note: Matt Kaiser founded The Kaiser Law Firm PLLC, a white-collar boutique in Washington, D.C., and will now be writing a weekly column for us about white-collar practice and his adventures in building a law firm. Matt previously covered the Supreme Court for us. This is the first installment of his new column.
When I meet non-lawyers — a rare and jolting occurrence -– or talk to lawyers who don’t practice in the white-collar criminal space, I’m frequently surprised at how few of them know what “white-collar criminal defense” means.
Yet, whatever it is, white-collar work is seen as sexy. Just about any fifth-year associate who has reviewed documents as a part of an FCPA investigation has “white-collar criminal defense” listed as a practice area on his firm bio. Fewer, I suspect, have a clear understanding of what white-collar work is.
There are clear cases. The prosecution of John Edwards is classically a white-collar case: it involved campaign finance, was in federal court, was litigated like a civil case, and Abbe Lowell represented the defendant (any case involving Abbe Lowell is per se white-collar).
Then there are the less-clear cases….
CNBC ran a story about the 10 Notorious White-Collar Fugitives Still at Large that stretches the definition of “notorious” to its very breaking point. Many of these are easy to understand as white-collar cases. Former lawyer Dennis Bjorkland’s case makes sense as white-collar. Bjorkland was accused to have set up a fake charity scam for DUI clients. To get sympathy from his clients when they went before the judge, he’d have them contribute to a charity. He was the “charity.”
Or there was a controller who was accused of setting up a fake company that he made it look like his employer was doing business with; he was accused of pocketing $8.7 million in payments to that fake company.
Or the turkey farm scam. Sure. Any criminal case involving turkey farm investments is a white-collar case.
But at least one of these is, at best, gray collar. Alin Velcu was accused of stealing ATM numbers when ATM cards were swiped, then using those numbers to later withdraw money from a bank account. If a guy down at the pretzel shop at the mall installs an ATM reader on the credit-card machine, that doesn’t really feel meaningfully white-collar (or, alternatively, maybe it is a white-collar case, but it’s a kind of white-collar case no lawyer with any business sense is going to build a practice on).
White-collar defense is best understood by the changes in the profession over the last fifty years. It used to be that elite law firms wouldn’t touch criminal defense cases. They seemed dirty.
There’s a t-shirt from the National Criminal Defense College in Macon, Georgia: “Please don’t tell my mother I’m a criminal defense attorney. She thinks I play piano in a whore house.” Mothers aren’t the only ones who’d rather see someone they know go to a brothel than an NACDL meeting.
Yet there’s an exception to the general distaste for criminal defense lawyers when you talk about white-collar criminal defense lawyers. The regulatory state is a part of life now; if you want to do business, you have to deal with regulators. And, sometimes, regulators make referrals to the Department of Justice.
If a CFO is going to get indicted, he isn’t going to want a guy who he thinks less of than a prostitute’s piano-player keeping him out of prison.
As the feds go after conduct in larger businesses, they also go after what happens in smaller businesses. The stockbroker or government contractor who built a business that’s now under investigation doesn’t want to share a lawyer with the drug dealer any more than the CFO of a publicly traded company. The white-collar bar has grown and diversified to meet that need.
White-collar cases are, then, best understood as cases where the people accused or investigated are “like us” (and, by “us,” I mean readers of Above the Law). People are tribal and petty. In the same way that ATL readers like to read the New York Times wedding announcements, clients want to read their law firm’s list of former clients. They want to know their lawyer is a lawyer who represents someone like them. Saying you do “white collar” criminal defense is a way of saying to your potential clients that you help folks like them and not Stringer Bell.
So, what’s a white-collar case? The best gesture at a definition is that a white-collar case is any criminal case (or potentially criminal case) that an Am Law 100 firm wouldn’t be embarrassed to tell an average client that it’s involved in.
Or, put another way, white-collar criminal work is just criminal work you can tell your mom about.
Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.