CBLA ‘s January 29 program at Fordham was well attended, with well over 200 attorneys having reserved a spot and a good turnout. If you would like to view “China and the FCPA – Challenges for the 21st Centure”, a video of the entire program will be available here (see below at end of this post for more details on the program).
Evan Jowers and Robert Kinney of Kinney Recruiting are available to meet any associates from other practice areas who are interested in an Asia move in the future. Feel free to reach out to them at firstname.lastname@example.org, email@example.com, or firstname.lastname@example.org.
Up until only a few years ago it was very difficult, if not impossible, for a US litigation associate to transfer or lateral to Hong Kong / China. Going as far back as ’07, some managed to land offers to transition to transactional practices, but even those relatively rare transition opportunities became nearly impossible to land by late ’07 as many Mandarin fluent corporate / cap markets US associates sought have sought moves to HK / China since the recession of ’08 and ’09, coupled with the IPO boom in Hong Kong / China from mid ’09 to mid ’11 (a HK IPO boom may be back now – but that’s for our next Asia Chronicles post).
Today, there are still only a handful of actual FCPA / White Collar practice groups (with a number of US attorneys, including a head FCPA focused partner) on the ground at US firms in Hong Kong / China – at such firms as Davis Polk, Ropes & Gray, Kobre & Kim, Debevoise, Kirkland & Ellis, for example (Kinney has made a number of FCPA / White Collar associate placements in Hong Kong / China within this group of firms). There are many more firms that have thriving FCPA / White Collar practices in China and in Asia in general, but do not yet have an actual practice group based on the ground in Asia. Some of these firms in the latter category already have great expertise in FCPA in their US offices and have well established strong China clients, so it’s not 100% necessary to have a group on the ground in Hong Kong / China, but it would be convenient if for the right people (such firms are going to be more selective and usually have already a counsel and / or an associate or two on the ground in China already). Most of the firms falling in the latter category want to build an FCPA / White Collar team in Asia and have made some efforts to do so , but it’s easier said than done (especially if a firm is properly focusing on attracting FCPA clients in China with great expertise, rather than just having boots on the ground), due to the difficulty in finding a partner to start the group falling into one of two categories:
a) A US White Collar partner (transfer or lateral) with the right Asia focused practice background, Mandarin fluency (although not always required), connection to Asia and desire to relocate quickly and permanently to Asia; or
b) One of the top 5 or so HK litigation / arbitration law firm partners in the market – this is also difficult because of the need to bring on board a large local group, usually consisting of multiple partners, double digit associates, and integrate into a major US firm different partner billing rates and different associate comp rates. Further, there are only about 5 top 5 or so HK litigators, so they are course very well aware of their great value and leverage in the market. Keep in mind that Hong Kong is likely to implement something very similar to the US’s FCPA and the UK’s Bribery Act. Also, US firms with strong FCPA practices only based in the US can easily incorporate such a new top flight HK local litigation practice into their platform and send a lot of work to. US litigation associates with Mandarin fluency are transferred and lateraled over the firm’s Hong Kong or China offices to fill out the team. It’s all a great plan and top US firms in Hong Kong are engaging in talks with such Hong Kong local litigation attorneys, but there has only been one firm that has made it happen thus far – Davis Polk.
Many US firms want to build up their FCPA / White Collar practices on the ground in Asia not only because it is a particularly hot practice area in the region now, but also because it is arguably the most lucrative practice area at US firms in Hong Kong / China at present (topic for another post).
Further, it is impossible to fill up such a new FCPA / White Collar team in Hong Kong / China with US associates who are both fluent in Mandarin and have been focusing for some years in FCPA / White Collar (very few of such folks exist). The typical US associate lateral hires or transfers in the HK / China based FCPA / White Collar groups are Mandarin fluent commercial litigation or IP litigation associates, who are interested in making a transition to a new litigation practice. Even these candidates are difficult to find, especially if written Chinese native fluency is required. Keep in mind that Chinese background law students at top JD programs up until just recently understood quite well that there was really no shot at lateraling or transferring to Hong Kong / China during their junior or mid-level US associate years if they chose to join a litigation practice during their 2L summers. There are simply not enough candidates today for FCPA / White Collar teams in Asia, especially as more firms seek to have such teams on the ground in Asia, and that will not change for a couple of years, at least, and at that time there will only be enough at the junior levels.
Looking forward, it is a golden opportunity now for Mandarin fluent US litigation associates today to put themselves in a position in Hong Kong / China, in some years, to be one of only a handful of senior associates / counsels in Asia who have focused on FCPA / White Collar for the past several years, while being based in Hong Kong / China. This relatively small handful of senior associates and counsels in the not too distant future will have opportunities for partnerships at other firms and regional counsel / Asia general counsel high level type in-house positions (a post for another day – many senior in-house spots in Asia now have FCPA expertise as big part of the job requirement).
Also, juniors and mid-levels will have a tremendous amount of responsibility in Asia, having a more senior role in corporate investigations than they would have at the same class year level back in the US, especially if their supervising partners are not fluent in Mandarin.
It is an exciting field to be involved in, but not for everyone. A downside is that FCPA is a narrow practice focus and once you have focused on FCPA for some years, that will be your recognized specialty (you will be marketable to move back to US and also of course within Asia). The broader White Collar practice area that FCPA falls under can keep things not so narrow focused for some. Also, it is highly likely that if you land in Hong Kong you will become Hong Kong qualified and gain experience as both a HK and US litigator. Thus, there are ways to keep your practice from being too narrowly focused. Over the next few years though while FCPA work in Asia will likely continue to be red hot, that is going to be the majority of work for new laterals and transfers into new Asia based US White Collar groups. So it may take some effort to keep your practice a bit broader initially. However, as stated above, you will want to be in a position in several years to claim senior expertise on the ground in Asia in FCPA in order to maximize your career advancement potential in Asia, including major firm partnership and senior level in-house marketability.
All of our Asia recruiters at Kinney have a pretty good understanding of FCPA / White Collar work, relative to other recruiters. Evan Jowers, the head of our Asia team, happened to get a lot of White Collar experience during his in-house years. it’s a bit silly to learn about the substantive details of a practice area from recruiters, so we highly recommend going to events like tonight’s CBLA program at Fordham. This event has no more seats available, but you can watch the video of it without having to deal with the cold weather and getting to and from. Here are the details:
Wednesday, January 29, 2014 . McNally Amphitheatre . Fordham Law School
REGISTRATION: 5:15 p.m.
PROGRAM: 6–7:30 p.m.
Opening Remarks: Professor Sean Griffith
• Professor Daniel Chow – Professor and Associate Dean, Ohio State University; Author, China Under the Foreign Corrupt Practices Act
• Nathaniel Edmonds, Esq. – Partner, Paul Hastings; Former Assistant Chief of FCPA Unit of the Department of Justice
• Thomas O. Gorman, Esq. – Partner, Dorsey & Whitney; Former Senior Counsel, Division of Enforcement, Securities and Exchange Commission
Question and Answer Session
Moderator: Professor Carl Minzner
Closing Remarks: The Honorable Denny Chin – United States Court of Appeals for the Second Circuit
RECEPTION: 7:30–9 p.m.
Edith Guldi Platt Atrium