Litigators, White-Collar Crime

The Downside To A Professional Identity; Or The Demise Of The Litigation Generalist

Good bye, sweet Generalist. We hardly knew ye.

I’m a white-collar criminal defense lawyer. I love it. There are times when I think that I’ve won the work lottery. Yet, in this column, I’m going to complain about it.

Normally, I think that being a white-collar defense lawyer means that I represent folks who are under investigation by the Department of Justice, a law enforcement agency that would refer a case to the Department of Justice, or a regulator like the SEC, CFTC, or Office of Inspector General (in some situations — OIG’s both handle debarment and developing a case for DOJ).

But sometimes I’ll do other kinds of work too. Recently, I’ve represented clients in civil litigation. I’ve represented clients in arbitrations. And I’ve negotiated resolutions of disputes where litigation is looming but not yet happening. I’ve gotten really good results for clients in these kinds of cases (and, like any lawyer, I’ve had some cases break bad too). I like to think that if a case comes in that presents a relatively sophisticated litigation problem that doesn’t require a specialist (think of an ERISA case) I would consider doing it. And there are other lawyers in my firm who, to be sure, do primarily civil work.

But, despite that, I identify myself as a white-collar defense lawyer.

Sometimes, even though a potential client is exactly the kind of person I want to represent, presenting myself or being known as a white-collar defense lawyer is a problem.

When is that?

This problem popped up recently. I was talking to a potential client [details modified to protect confidentiality]. She was in a civil negotiation with a soon-to-be former business partner that had potential criminal undertones. But most of the issues were about threatened litigation over the break up of their business relationship.

I’ve done a few partnership break up cases. They’re fun — kind of like business divorces. So I think this case could have lined up very well with work I’ve done in the past.

But the client didn’t hire me. Maybe it was something she didn’t want to say — perhaps she just didn’t like me. Perhaps she liked another lawyer better. Maybe she worked it out of her own.

The reason she gave, though, was that she was worried that if she hired a white-collar criminal defense lawyer, it would signal to the other party that she was most worried about the criminal part of the case blowing up.

The concern is that her partner (or soon-to-be-former partner) had made an allegation of fraud. Frankly, I suspect that more than half of the folks in this kind of situation allege some kind of fraud. Angry people say angry things. In this case, the fraud allegation seemed pretty darn attenuated (though, of course, I didn’t get hired, so I didn’t spend a ton of time investigating it, and people sometimes describe what happened in a way that is not completely consistent with the existing documentary evidence).

The potential client thought that by hiring me — a guy who is a white-collar criminal defense lawyer — she’d be signaling that she thought the fraud allegation was more credible than it actually was and it would give up some of her leverage in negotiating a resolution to the business dispute.

It’s hard to say this is a completely unreasonable view in every situation. In a negotiation, perceptions matter. If the other side thinks you think you’re weak on a point, they can exploit it, regardless of whether you are, in fact, weak on that point. I think it could be handled, but I get the concern. Just because a situation can be handled, it doesn’t mean choosing a lawyer where it has to be handled is what a person should do.

On the other hand, as the meaningfulness of the threat of a criminal problem increases, the reasonableness of wanting to avoid having a white-collar guy on board goes down. The more likely there is to be a white-collar criminal problem, the more the client really needs someone on board looking out for one.

It’s a species of not wanting to hire a lawyer when the FBI shows up at your door because doing so will make you look guilty. My sense is that if the FBI shows up at your house, they already think you look plenty guilty — you’re not doing yourself any favors by sweating perceptions at that point. But some people still resist hiring a lawyer because they worry how it will look.

It used to be that lawyers could be generalists — or generalists within bounds. The firms where I worked before I started my own are known for that — Williams & Connolly and Zuckerman Spaeder are great places to go if you have a white-collar problem or if you have a complex civil problem. Most white-collar shops of any size also do a large chunk of civil work. Yet I fear that’s changing.

Perhaps, as the five-lawyer firm I’m at grows, we’ll have fewer problems like this — or the problems will attach to an individual lawyer and not the firm generally.

Or, maybe, this is a signal that being a general litigator is harder than it used to be.

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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