Insulating Oneself From Ongoing Potentially Criminal Activities

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In some professional or white collar cases, the client continues to act in a manner the government deems illegal. In such cases it is necessary to separate civil and criminal representation, so that the criminal defense lawyer is not subjected to a potential conspiracy indictment. If you are the defense lawyer, your judgment will be better if you concern yourself only with criminal exposure and not with maintaining lucrative, hourly representation with an ongoing "business client." For example, if you are representing a client in a mail fraud prosecution you should not simultaneously be involved in advising the same client as to what is or is not deceptive advertising for a product.

You should also be aware of the risks of being subjected to a RICO (Racketeer Influenced and Corrupt Organizations) prosecution as the result of even a tenuous involvement with the client.

Pretrial Motions

There are certain motions which frequently are appropriate in defending, the professional. In many cases the professional or white collar defendant has such stature in the community that the case has attracted notoriety. Rule 2l of the Federal Rules of Criminal Procedure provides that the court shall, upon motion of the defendant, transfer the case, where there exists so great a prejudice that the defendant cannot obtain a fair and impartial trial. If this is true in your case, you should file such a motion.

If the defendant has no criminal record, the government may use a lengthy indictment to take the place of a criminal record. The jury is left with the impression that a defendant charged with so many counts must be a bad person and must be guilty of some of them. The defense lawyer should, therefore, bring a motion to strike the multiplicitous counts and to strike the surplusage pursuant to Rule 7 of the Federal Rules of Criminal Procedure.

Many of these cases involve volumes of documents and the testimony of experts. Prior to trial you, as defense lawyer, should bring a motion for early disclosure of Jencks Act material and documentary evidence that the government intends to use. This will assist the defense and will save the court time, since it will not be necessary to call a Jencks recess after each government witness testifies. An attorney cannot effectively prepare the cross-examination of an expert during a 30-minute trial recess.

The Jencks Act, of course, requires that a witness’ statement be produced to defense counsel only after the witness has testified. However, at least one court, invoking the US Constitution, Rules 403 and 102 of the Federal Rules of Evidence, and its own inherent powers, has ordered the early disclosure of Jencks material so as to alleviate a severe backlog of cases in its district.

Utilizing the Expert Witness

Many "white collar" or "professional defendant" cases involve complex fact situations. The defense lawyer should recognize the need for utilization of experts.

A true advocate masters the subject matter of any case, no matter how complex, and presents it in such a manner that it can be readily understood by the jury. The prosecutor will have the expert resources necessary to present the complex case to the jury. If you fail to utilize experts similarly, the defense will be at a disadvantage. You cannot wait for a defense to emerge at trial. Use your experts to develop a coherent, credible defense to the prosecution prior to trial. Educate your client as to the need to retain and pay experts.

It also is important to use experts to defuse the impact of the government's experts. Defense experts can accomplish this end by assisting defense counsel in the preparation for cross-examination of the expert or by testifying themselves.

In a tax fraud case, the services of a tax lawyer, an accountant, or a retired Internal Revenue special agent often provide the margin between victory and defeat. Former agents are especially useful.

It is imperative, however, for the attorney who hires an expert, such as an accountant, to take steps to insure that the attorney-client privilege remains intact. The attorney-client privilege inures to the client and includes all the office employees of the attorney. It is also available to a corporation. The privilege, of course, belongs to the client, who can waive it. This same privilege, however, does not exist between a client and any other experts, such as accountants, who have provided a service to the client prior to the inception of a criminal prosecution.

Even when state statutes have created a privilege between an accountant and a client, some federal courts have held that the statutes provide no protection in a criminal case. Thus, you should retain directly a new accountant who has no prior relationship with your client. The court, in United States v. Kovel, extended the attorney-client privilege to an accountant employed by a law office who communicated directly with the client, as long as the communication was in confidence and for the purpose of obtaining legal advice.

The expert consultant or witness should sign a contract expressly stating that he or she is an employee of the law office in connection with the case and that he or she expressly recognizes the existence of the attorney-client privilege and will not violate it. The lawyer should pay the expert directly.

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