White-Collar Crime

If You Have a FERC Problem, Maybe Don't Hire a FERC Lawyer

When dealing with an insular bar, sometimes the best strategy is to look for outside lawyers.

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A famous criminal defense lawyer was asked about how to hire a lawyer for a criminal defense case. Imagine, he was asked, that a relative was charged with a serious crime in a place where he didn’t know anyone. How would he go about finding a lawyer for his friend?

The answer — hire the best lawyer in the next town over.

A good criminal defense attorney will have relationships with the local prosecutors. She’ll know the local judges. And when you hire a criminal defense attorney, you assume that one thing you’re getting is a favorable presentation to those prosecutors and judges. The trouble is, that lawyer may have more of an interest in her professional standing in the community than in your case.

If you’re really in trouble — life is on the line kind of trouble — that criminal defense lawyer’s advice was to hire someone who knows what they’re doing and is willing to ruffle feathers on your behalf. Everyone is a little beholden to their own community. Find someone from another community.

There’s a nice example of that principle in action in a complex white-collar case in the Wall Street Journal this week.

Rich and Kevin Gates — identical twins and traders in electricity markets — were targeted by FERC for manipulating markets.

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The FERC bar, as I understand it, is a bit insular. Like so many insular regulatory bars, folks work at the agency for a while, then move into private practice, and maybe go back to the agency if a plum enough position opens up. Professionally, you swim in the same water with folks at the agency.

The Gates brothers first did the thing someone would normally do — they had a FERC problem, so they hired a FERC lawyer. As the Wall Street Journal article reports:

At first, the Gates brothers tried to adhere to the insider playbook and hired an attorney from White & Case, a D.C.-based law firm that does frequent business in front of FERC. The insular Washington energy bar trafficks in political connections, but those aren’t so useful for clients who maintain their innocence.

I imagine that the standard insider playbook is to work out a deal with FERC. And the Gates brothers didn’t want a deal.

During a deposition,

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Mr. Gates was asked to leave the room and sat in the hallway while his lawyer conferred with the feds. The lawyer emerged to relate what the FERC enforcement team had proposed: “Kevin’s a businessman, isn’t he? He knows that it’s cheaper to settle than it is to fight this investigation.” Right then, Mr. Gates says, “I realized that we had a big problem on our hands. This was unlike anything we’d ever seen before at a regulatory agency.”

Actually, it sounds a lot like what I feel like I’ve seen at a lot of agencies. But ok.

The Gates brothers then went out and hired the best lawyer they could find one practice group over. They intentionally hired a lawyer with little FERC experience.

The Gates brothers fired the white-shoe practice and brought on Bill McSwain of Drinker Biddle, a Philadelphia-area lawyer who “didn’t interface much with FERC. He also used to be a Marine sniper, so he had a different approach to the world.” Mr. McSwain introduced himself to FERC by calling their conduct contrary to “established law, as well as common sense,” and that was one of his subtler letters.

They also put all of the papers in the case online, in case anyone wanted to watch the legal battle. It’s at Ferclitigation.com.

I don’t know if the Gates brothers will be successful. Of course, Mark Cuban beat the SEC but paid multiples of what the SEC was seeking in legal fees — perhaps the Gates brothers will wind up in the same place.

But by moving outside of the FERC bar, they got the lawyers they want for how they want to handle the case.

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.

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