The following is an excerpt from Practice Perspectives: Vault’s Guide to Legal Practice Areas.
Nicolas Bourtin—Partner, Criminal Defense and Investigations Group
Nicolas Bourtin is a litigation partner, the managing partner of Sullivan & Cromwell’s Criminal Defense and Investigations Group (CDIG) and one of the coordinators of the FCPA and Anti-Corruption Group. His practice focuses on white-collar criminal defense and internal investigations, regulatory enforcement matters, and securities and complex civil litigation. Nic has represented individuals, corporations and financial institutions in numerous high-profile matters involving accounting fraud, antitrust, FIRREA, the FCPA, insider trading, money laundering, mortgage orientation and servicing, OFAC sanctions, securities fraud, tax fraud, and trading. He has experience representing financial institutions in parallel regulatory and criminal investigations and representing non-U.S. companies and individuals in U.S. investigations. He has conducted numerous jury trials and has argued frequently before the Second Circuit.
Nic also serves, on a pro bono basis, on the Criminal Justice Act panel for the Eastern District of New York, representing indigent defendants in federal court. He is frequently recognized as a leading practitioner in the area of white-collar criminal defense and writes and lectures frequently on criminal law and government investigations.
Please provide an overview of what, substantively, your practice area entails.
Sullivan & Cromwell’s Criminal Defense and Investigations Group (CDIG) represents sophisticated clients around the world in high-stakes matters relating to white-collar criminal defense matters, regulatory enforcement matters and internal investigations. We’ve played leading roles in virtually every major law enforcement initiative of the past 20 years. We handle matters pursued by nearly every enforcement agency and have developed particular expertise in handling cross-border enforcement investigations for clients worldwide. Our investigations typically involve numerous regulators and prosecutors in jurisdictions around the globe. Our success is confirmed by the fact that so many of these matters remain non-public.
What types of clients do you represent?
I represent a combination of major financial institutions and other industrial companies, including a number of multinational energy, mining, and extraction companies.
A substantial portion of my practice is also devoted to representing individuals, mostly senior executives of large companies. I’m currently representing the former CEO of an oil services company in connection with the resolution of a foreign corrupt practice investigation and a senior executive of a global shipping company.
What types of cases/deals do you work on?
My cases involve a very broad array of subjects. Over just the last two or three years, I’ve worked on matters involving money laundering, OFAC sanctions, FCPA, Libor benchmark interest rate trading cases, insider trading, accounting fraud, tax fraud, mortgage origination and securitization, and consumer fraud. One area that has been expanding in recent years is consumer financial fraud investigations. I am currently working on a number of matters for Wells Fargo that focus on consumer fraud allegations.
How did you decide to practice in your area?
I first came to Sullivan & Cromwell wanting to be a generalist litigator. After working on a number of white-collar investigations teams, and from serving as a law clerk, I got hooked on criminal law. I was immediately drawn to the emotional and psychological aspects of criminal law and the sheer human drama of it. The stakes feel higher. When someone’s individual freedom is at stake, your adrenaline gets flowing. That prompted me to want to work as an Assistant United States Attorney in the Eastern District of New York, which I did for four years.
When I came back to Sullivan & Cromwell in 2005, it felt like I was going back home. White-collar investigations of financial institutions and large companies were seeing a steep increase, so it was a great opportunity to come back to the firm and rejoin colleagues who had been friends and mentors to me and to help build out a practice area that was growing in leaps and bounds.
What is a typical day or week like in your practice area?
There really is no typical day, let alone week, but I spend the bulk of my time in meetings or on phone calls with clients, colleagues and government prosecutors and regulators; preparing for those communications; and reading key documents. There are a lot of formal presentations to the government about our investigations and many more informal “touch base” conversations for status updates. Conversations with clients to give updates and decide on strategy happen throughout the day. Because criminal defense is a very fact-intensive field of law, the investigative work takes us to the evidence and the witnesses, so there’s plenty of travel, including to foreign locations where many of our clients are based.
And, underpinning and making all of this work possible—and the best part of my job—is interacting with S&C colleagues. I’m a big believer in talking—particularly face-to-face. Our internal meetings are where some of the most talented lawyers in the world gather as a team to develop solutions to complex problems. And they’re the key to our firm’s success.
What is the best thing about your practice area?
White-collar crime has the best of both worlds. It requires deep thinking and profound analysis of complex factual circumstances and legal frameworks, statutory interpretation, and public policy. The intellectual challenge is intense. At the same time, all of that thinking takes place inside real-world crucibles, where the results of your lawyering may determine whether real people will go to jail or otherwise have their careers destroyed. The human element cannot be understated. Our “You Can’t Make This Stuff Up” file has many volumes and the psychological aspect of white-collar crime and enforcement is particularly fascinating to me and something I’ve written about. It’s that perfect combination of the human stakes and drama and the intellectual challenge that I find irresistible.
What is the most challenging aspect of your practice area?
The unpredictability of the practice is its greatest challenge but is also the greatest allure. Many days I come in thinking I know what my (already full) calendar is going to be that day. But one Wall Street Journal article, or a panicked phone call from a client, can signal a full-fledged crisis that throws my schedule into disarray, perhaps even sending me rushing home to pack a change of clothes so that I can fly off to another city somewhere to launch a new investigation. Since what we do is so high stakes, our work is often done on an emergency basis. It’s challenging to pace yourself sometimes because so much happens so quickly, and you need to be able to react quickly and maintain your Zen in the midst of chaos.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
First, take classes outside of litigation. Take securities, banking regulation, federal tax, trusts and estates, and even mergers and acquisitions because understanding the basics of what non-litigators do can prove very valuable. Even though we turn to our corporate, tax, real estate, and trusts and estates colleagues to provide true subject matter expertise in the areas that underpin the investigations that we do, a basic understanding of other subjects will help you spot issues.
Second, look for opportunities to be on your feet presenting to others. It doesn’t have to be in a courtroom. Moot court, clinics and pro bono opportunities provide great opportunities to speak to an audience. Be the lawyer who volunteers to present at a practice group lunch. Give presentations to senior lawyers, partners or clients whenever you can. Pursue opportunities to present to people who will ask you tough questions and critique your performance. Getting the experience of talking and thinking on your feet in front of others—anyone engaged and willing to test you and provide feedback—is the best way to acquire one of the most important skills of lawyering.
What misconceptions exist about your practice area? What do you wish you had known before joining your practice area?
The public misconception that white-collar defendants are treated with kid gloves by prosecutors and regulators is one that continues to mystify those of us who practice in this area. The experience of being investigated is among the most grueling and stressful things a person can endure. Due simply to the nature of the process, a great many innocent people get caught up in the machinery of the criminal justice system. They may have to retain their own lawyers, submit to interviews by agents and prosecutors, take leaves of absence from their jobs and suffer sleepless nights wondering if they’re going to end up as criminal defendants someday. The toll on individuals, families and companies is immense. Even when you’re not at the center of an investigation, there’s an ever-present awareness when working in a big company that an error in judgment, however well intentioned, may look terribly different in hindsight to a critical observer.
What is unique about your practice area at your firm, and how has it evolved since you have been at the firm?
What makes our criminal defense practice (CDIG) at S&C unique is something that’s at the core of our firm as a whole: our practice groups are integrated in a way you won’t find at other firms. CDIG members come not just from our Litigation department, but from all our practice areas, including financial services, securities, executive compensation, project development and finance, M&A, tax, and estates and personal. When we conduct a white-collar investigation, we bring in the subject matter experts who know the client or the field best, not simply to consult in the background, but often to be key members of the team. This interdisciplinary teamwork is at the core of S&C’s generalist philosophy. By working together collaboratively across practice areas, we all develop competencies outside of our core competencies. And through a virtuous cycle, that makes interdisciplinary teamwork that much more natural. We’re unique in this regard. It’s our secret sauce.
What activities do you enjoy when you are not in the office, and how do you make time for them?
When I’m not working, I’m usually spending time with my wife and our twins. I balance work and life by living close to the office, which cuts down on commuting time, and being as disciplined in carving out family time as work time. The four of us take pretty great vacations and have been all over the world. I owe a lot of that to colleagues who graciously cover for me while I’m away. My son is a budding young athlete, and I coach his Little League baseball and flag football teams. As he’s grown up, he has largely outstripped my coaching abilities, and these days I’m mostly limited to warming him up on the side and then cheering from the stands. My daughter is a devoted dancer. I never miss her recitals and we have daddy-daughter dates at the ballet. Being a dad is the most important thing in the world to me—so I guess interesting hobbies will have to wait until they’ve grown up. After work and family, if I have any time left over, I’m usually reading some work of fiction or watching the New York Yankees.