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White Collar Defense & Internal Investigations

Overview

Attorneys in this practice area represent individuals and companies accused of financial crimes in criminal suits, often brought by the DOJ, and conduct investigations at companies to determine if any parties engaged in wrongful conduct. White collar attorneys often work as prosecutors either before, after, or in between stints as defense counsel in private practice. The day-to-day practice of white-collar defense is similar to civil litigation and includes discovery, research, drafting, factual development, and motion practice, but with significant client contact, especially when representing individuals. Internal investigations can be a very hands-on practice. Attorneys will often go to a company to review documents and interview employees to develop an understanding of facts in the face of allegations of financial or other impropriety by individuals at the corporation. Lawyers in this area are often called in to be crisis managers.

Featured Q&A's
Get an insider's view on working in White Collar Defense & Internal Investigations from real lawyers in the practice area.
Joon H. Kim, Partner
Cleary Gottlieb Steen & Hamilton LLP

Describe your practice area and what it entails.

I practice white collar criminal defense, internal investigations, and regulatory enforcement, as well as commercial litigation, arbitration, and crisis management. My broad practice area involves representing companies, financial institutions, and individuals in all kinds of disputes and investigations, including criminal or regulatory investigations brought by federal and state agencies, as well as litigation and arbitration. My practice also includes guiding corporations and financial institutions and their boards of directors as they face some of their largest legal challenges.

What types of clients do you represent?

I represent primarily multinational corporations and financial institutions in various industries. I also represent certain individuals, mostly corporate officers and financial industry executives, in criminal and regulatory investigations.

What types of cases/deals do you work on?

I work on cases that involve companies that are subject to investigations by the U.S. Department of Justice, the SEC, the CFTC, and other prosecutors and regulators in the U.S. and abroad, as well as litigation and international arbitration.

Most of those investigations are not public, but some that are include financial institutions that were the subject of investigations arising out of the LIBOR and rates manipulation cases, companies involved in cross-border M&A deals that need regulatory approval, and international bribery investigations. I also worked on the securities litigation arising out of the Brazilian corruption scandal, which involved representing Petrobras in its securities litigation in the Southern District of New York. Another aspect of my practice is to help companies address internal compliance issues and to assist them in investigating potential issues raised by whistleblowers, as well as proactively strengthening their compliance programs and culture.

How did you choose this practice area?

I’ve always been interested in criminal law and dispute resolution. During more than two decades of practice, I spent 10 years at the U.S. Attorney’s Office in the Southern District of New York, first as a line prosecutor and then as a member of its leadership, and more than 10 years in private practice. With my experience as a federal prosecutor, it was natural for me to have a practice in white collar criminal defense and enforcement.

What is a typical day like and/or what are some common tasks you perform?

One of the great things I’ve found about my practice is that there is no typical day. On any given day, I can be interviewing witnesses in connection with an investigation, dealing with government prosecutors and regulators, drafting or revising submissions for courts or arbitrators, working with companies and boards to provide advice in connection with major legal challenges, or reviewing and analyzing evidence in a case to prepare for a hearing or a government presentation. No two days are the same, and there is a wide variety in the work that my practice involves. This ensures that the work is always interesting, challenging, and fun.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

The best training in this area is to get involved, observe others doing the work, and then, do it yourself. For young lawyers, it is important to work with experienced practitioners to see what they do and how they handle different situations. That being said, what is great about this practice of enforcement and dispute resolution is that a lot of the work is really a matter of common sense, which is something that young lawyers have just as much of as experienced lawyers (and sometimes more). I would recommend that anyone interested in the area of enforcement and litigation try to observe and learn from those who have been doing this work for a while.

At Cleary, we are also fortunate to have a lot of training opportunities to support litigation attorneys of all levels, ranging from our New Litigation Associate Training program to our ongoing Litigation Fundamentals Curriculum and Discovery Workshop series. We also support attorneys who wish to participate in external training programs. While a lot of this practice area is common sense, there are always opportunities available to support the development of new skills and the honing of one’s practice.

What is the most challenging aspect of practicing in this area?

One of the most challenging and interesting aspects of practicing in the area of enforcement and litigation is that every matter involves a completely new set of facts and often a new, unfamiliar area of law. The practice involves providing advice and advocacy in connection with whatever criminal, regulatory, or disputes-related legal challenge a client is facing at that time. No two disputes are ever exactly the same. It therefore requires being a quick study and being comfortable with new areas of law and new, often complex sets of factual circumstances.

What is unique about your practice area at your firm?

Because Cleary Gottlieb is such a global firm and one that is collaborative and collegial in nature, our work offers a healthy variety of purely domestic matters and fascinating pro bono opportunities, along with complex cross-border and international work. That means we have clients who are based overseas, we have U.S. clients facing problems here and around the world, and we have multi-jurisdictional matters that require coordination with lawyers at the firm’s other offices. The degree to which the work is international and cross border is quite unique to a firm like Cleary, and both the content of the work and the opportunities to collaborate with my colleagues certainly make the practice here more interesting.

How do you see this practice area evolving in the future?

It is hard to predict how this practice area will evolve, but I can say with certainty that it will continue to evolve. While we can’t say specifically what the next series of crises will be, whether criminal or regulatory, our practice will adapt to focus on the new crimes and forms of misconduct that present themselves in the future. For example, a big part of the practice now involves cybercrime and intrusions, as well as other misconduct and investigations that involve electronic communications and technology. These were essentially nonexistent a decade ago.

How important is prior criminal law experience (e.g., working for the prosecutor’s office or DA) in paving a successful career in white collar defense?

Experience as a prosecutor can be very valuable for a white collar defense lawyer. Knowing how prosecutors think and how prosecutors’ offices are organized, as well as the types of things that they will be looking for and the types of arguments that they are likely to find persuasive is very helpful to clients who are the subjects of investigations. That being said, there are many incredibly successful white collar defense lawyers who have never been prosecutors, and on the flip side, there can be a danger to thinking too much like a prosecutor. Overall, I would say it’s a helpful credential and experience to have, although certainly not critical to success.

Joon H. Kim, Partner—White Collar Defense & Internal Investigations

Joon H. Kim is a partner in Cleary’s New York office. His practice focuses on white collar criminal defense, internal corporate investigations, regulatory enforcement, and crisis management, as well as complex commercial litigation and arbitration. Joon has enjoyed a distinguished career at high levels of government and in private practice and has received numerous awards recognizing his contributions to the greater legal community, including the NAPABA Trailblazer Award, the Korean American Story Trailblazer Award, and the KALAGNY Trailblazer Award.

Joon joined the firm in 1997 as an associate. Later, he became an Assistant U.S. Attorney in the Southern District of New York and rejoined the firm’s enforcement and litigation group in 2006, becoming partner in 2009. He returned to the U.S. Attorney’s Office in 2013 and held leadership positions, including Deputy U.S. Attorney, chief of the Criminal Division, and chief counsel to the U.S. Attorney.

From March 2017 to January 2018, Joon served as the Acting U.S. Attorney for the Southern District of New York. Joon oversaw all criminal and civil litigation conducted on behalf the United States and supervised about 220 Assistant U.S. Attorneys handling a wide range of cases. Joon oversaw high-profile prosecutions and investigations of corruption, money laundering, and terrorism, including the investigations and subsequent convictions of Sheldon Silver, the former speaker of the New York Assembly; Dean Skelos, the former New York State Senate majority leader; the Turkish banker Mehmet Hakan Atilla; and the Times Square Bomber, Akayed Ullah.

Joan McPhee, Partner
Ropes & Gray LLP

Describe your practice area and what it entails.

I represent companies, organizations, and individuals in criminal investigations, internal investigations, and government enforcement actions, as well as in parallel civil litigation and administrative proceedings. The practice involves representing clients at trial and also in the investigative phase and during negotiations with the government to achieve a non-prosecution disposition or civil resolution. My practice also involves counseling clients on risk mitigation and effective compliance measures. In addition to my work on government enforcement matters, I have also served as an independent investigator with a mandate to conduct a thorough and independent investigation, make factual findings, and report those findings directly to the public.

What types of clients do you represent?

I represent a wide range of clients, including health care companies, private equity firms, financial institutions, pharmaceutical companies, hospitals, academic institutions, and nonprofit organizations. I have also represented a broad array of individuals, from senior executives and board members to physicians and engineers, defending them against a range of charges, including financial fraud, health care fraud, obstruction of justice, securities fraud, and tax fraud. The diverse nature of my clients, both corporate and individual, and the challenges they face, creates a constant need to learn about new industries, lines of business, academic endeavors, and nonprofit pursuits, as well as new areas of the law. This diversity is one of the aspects of my practice that, while challenging, I most enjoy.

What types of cases/deals do you work on?

A few recent matters illustrate well the varied nature of my practice. I served as lead trial counsel for Kurt Mix, a drilling engineer, in a two-count felony obstruction of justice case related to the Deepwater Horizon oil spill. Mr. Mix was indicted and went to trial in federal court in Louisiana. Thereafter, in response to a defense submission—and three weeks before a scheduled retrial—the Department of Justice dismissed all obstruction of justice charges against Mr. Mix. The case took more than four years from inception of the government’s investigation through trial, appeal, and ultimate dismissal of the obstruction charges.

I am currently representing a multinational company in a cross-border investigation being conducted by Brazilian authorities, as well as the SEC and the Department of Justice. The matter relates to alleged antitrust and corruption violations.

I also co-led an independent investigation throughout much of 2018, commissioned by the United States Olympic Committee, into the abuse of elite and Olympic gymnasts by Larry Nassar, the former national team doctor for USA Gymnastics. The investigation culminated in a detailed public report addressing “who knew what when,” as well as contributing factors and cultural conditions in the decades-long abuse.

How did you choose this practice area?

Early in my career, after completing a federal district court clerkship, I served as an Assistant United States Attorney in the Criminal Division of the United States Attorney’s Office for the Southern District of New York. As an Assistant United States Attorney, I investigated numerous matters, including armed bank robbery, labor racketeering, financial fraud, sexual exploitation of minors, and organized crime. I also tried approximately a dozen criminal cases during my roughly five-year tenure in the office. That intensive exposure to the criminal justice system as a federal prosecutor honed my investigative and trial skills and also captured my interest and commitment to handling matters where the stakes are high and the interests of justice strong. When I joined Ropes & Gray in 1990, there was no formal government enforcement practice. But as the government came to target more and more companies and their personnel across a range of industries, the practice soon became established at Ropes & Gray and has grown year over year—we now have more than 100 enforcement attorneys worldwide.

What is a typical day like and/or what are some common tasks you perform?

There is no typical day in the office, and it is not uncommon for unexpected developments to upend what had otherwise been planned for a given day. It is a practice that is highly reactive—to actions by the government, orders from the court, the emergence of new evidence or investigative leads, or developments that present a risk of immediate harm to a client’s reputation. Other, more day-to-day aspects of the practice include witness interviews, review of key documents, strategy discussions with clients and colleagues, preparation of presentations to the government, and motion practice in court.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

In law school, taking classes in criminal law and criminal procedure will give you a sense for whether this is an area of the law that interests you. Then, as a junior lawyer, there is no better training to be a government enforcement practitioner than to get involved in significant investigations that provide the opportunity to participate in witness interviews, to dive into the documentary record and other factual material, and to help prepare a case for trial or navigate a path to resolution. If you have the opportunity to go to trial in a case that you have worked on during the investigative phase, it will give you the invaluable opportunity to see and learn firsthand how a case comes together—the way the documents, witness testimony, and other evidence are used in support of the prosecution or defense case, and how that evidence is both presented and challenged at trial, in direct and cross-examination, in opening and closing statements to the jury, and in other trial proceedings.

What is the most challenging aspect of your practice area?

I represent clients who typically are facing among the most difficult, challenging, and stressful events in their lives. They are facing problems that they cannot solve on their own, be it a major company or a lone individual facing criminal charges. There is heightened risk for individuals, as their liberty is on the line. For companies, the legal, financial, and reputational consequences of a criminal conviction—or even being charged with criminal misconduct—can be devastating. The stakes are thus very high in government enforcement matters, and a fair and just resolution is imperative. The responsibility as counsel is enormous, but the flip side is that the work, focused on ensuring that justice is done, becomes mission driven. It is extremely gratifying to help individuals and companies through such a harrowing and critical set of challenges.

What do you like best about your practice area?

My practice is constantly changing. The subject matter may be completely different from one case to the next. I am always diving in and having to become an expert in a new area. That type of constant tumult and challenge may not appeal to everyone, but I have found that I thrive on it.

I also like the opportunity to get deeply involved in a subject. Government enforcement cases are often very extended matters. It is not uncommon for investigations to last for many months or even years. The independent investigation commissioned by the U.S. Olympic Committee took approximately 10 months to complete, and included more than 100 witness interviews and review of more than 1.3 million documents. Major government investigations into alleged corporate misconduct can take four or five years from inception to resolution.

The other thing I like about my practice is that it presents opportunity after opportunity to work collaboratively with many different colleagues here at Ropes & Gray, as well as colleagues at other firms.

And once again, I like the critical nature of investigative and enforcement matters. Working hard to help my clients get the best possible outcome when they are facing tremendously difficult circumstances is highly rewarding.

What are some typical tasks that a junior lawyer would perform in this practice area?

Junior lawyers often participate in witness interviews, and also will review documentary evidence, conduct legal research, and draft factual and legal memoranda, as well as presentations to the government and briefs submitted in court. They will also participate in drafting detailed reports at the conclusion of an investigation. Junior lawyers will have opportunities to engage with expert witnesses, oversee forensic reviews, and help to prepare a case for trial. There are also opportunities to participate in strategy sessions with clients and to argue motions in court, as soon as the junior lawyer has demonstrated that he or she is prepared and ready to take on that role. In short, the work of junior lawyers in the practice is highly varied and important, and it is typically very interesting.

What are some typical career paths for lawyers in this practice area?

Some enforcement lawyers follow a career path similar to my own, with early experience as a federal prosecutor in a U.S. Attorney Office or at the Department of Justice, or in other public service positions that afford the opportunity to try cases—for example, with the Securities and Exchange Commission or in state prosecution offices. But that is not the only avenue. Many of my colleagues at Ropes & Gray started their careers with the firm and built strong white collar defense and government enforcement practices based on the many opportunities at the firm and their own exceptional talent and commitment. Yet another pathway for many lawyers who practice in the field is to begin their careers as criminal defense counse, perhaps starting in public service, and build a practice and reputation from there. Whatever path is chosen, the critical component that cuts across the different pathways is the opportunity to engage across a broad range of complex investigations, criminal trials, and other enforcement matters.

Joan McPhee, Partner—Litigation & Enforcement

Joan McPhee has more than two decades of experience representing companies and individuals in gov-ernment enforcement matters, as well as white collar criminal investigations and trials. She has been lauded for her handling of high-profile and high-stakes matters, including a case that gained nationwide attention following the 2010 Deepwater Horizon oil spill. A leader of Ropes & Gray’s independent investigations group, Joan recently co-led a 10-month independent investigation commissioned by the U.S. Olympic Committee into the abuse of elite and Olympic gymnasts by Larry Nassar. The detailed public report was described by The Washington Post as “thorough and unstinting” and was featured in hundreds of news outlets around the globe. Throughout her career, Joan has been dedicated to public service—in government, in community organizations, and in leadership roles on diversity and inclusion initiatives in the legal profession. She has held numerous leadership positions at Ropes & Gray, serving for 10 years on the firm’s governing board and for many years as head of the government enforcement practice. In addition, she co-chairs Ropes & Gray’s diversity committee and has served in a leadership role with the firm’s pro bono committee.

Nicole Friedlander, Partner
Sullivan & Cromwell LLP

Describe your practice area and what it entails.

I handle criminal defense and investigations and cybercrime matters for our clients. On the criminal side, this entails conducting internal investigations, navigating government inquiries and processes in the U.S. and abroad, and working closely with some of the biggest companies in the world. On the cyber side, my work is split between advising companies and boards of directors on cyber preparedness and helping companies respond to cybersecurity incidents.

The clients who come to S&C for white-collar and cybersecurity advice typically face complex challenges with the potential to impact them on many fronts, including with governments, shareholders, customers, employees, and the public. As a result, I have the opportunity—and am indeed expected—to consult with colleagues in other practice areas at the firm, whether it’s our senior chairman or partners and associates in other areas. I never work in a vacuum. It’s a terrific setting because it fosters collaboration and gives each of us a new perspective on the issues our clients face that makes us more effective in our particular areas of focus. And above all, I think this kind of collaboration leads to the best result for our client.

What types of clients do you represent?

I primarily represent financial institutions and corporations across a range of industries. They are terrific clients in that they are really sophisticated and engaged. I also do pro bono work representing indigent criminal defendants in the United States District Court for the Southern District of New York, which is very rewarding.

What types of cases/deals do you work on?

I have a very broad practice, which is typical for S&C. As an example, I’m currently representing clients in fraud; money laundering; Bank Secrecy Act; FCPA; cybercrime; and cross-border tax matters involving federal, state, and foreign authorities; as well as congressional inquiries.

Something I love about the practice is the scope and complexity of the matters we handle. The problems our clients face are always changing, and the work stays challenging and exciting. And because the investigations typically affect many people, including our clients’ employees and other people I get to know well, there is a personal dimension to the work that I really enjoy.

To give you some examples, I’m currently working on an investigation involving criminal and regulatory authorities across five countries around the world. It is fascinating to work through the cross-border legal issues that raises, and the case has introduced me to new places and new cultures, which is really fun. I am also working on an investigation involving contentious legal questions that have rarely been litigated, and in which I recently presented to congressional committees, which is exciting to do. I also have several investigations which the media follows closely, adding a layer of complexity to our work. And this is just in white-collar. I’m also currently advising several corporations on cybersecurity matters, both pre- and post-breach, which are quite sensitive.

How did you choose this practice area?

I worked on white-collar matters as an associate at a firm after law school and found that it was exciting, fascinating, and meaningful. I also thought it would be an honor to work in public service, and I combined those interests by applying to the U.S. Attorney’s Office in Manhattan, where I had the great fortune to work as a prosecutor for eight years. When I decided to return to private practice, joining S&C’s world-class practice was an easy choice.

What is a typical day like and/or what are some common tasks you perform?

The great thing about my practice is that every day is different! Things I do frequently include meeting with witnesses, preparing for presentations to the government on subjects at issue in my investigations, and reviewing evidence to uncover and understand the relevant facts in a case. Fundamentally, I’m always asking the same questions: What happened here, what is the story, and how can we present this in the most effective way?

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

I recommend looking for opportunities to work on your public speaking skills. A lot of what we do in our line of work involves presenting to others—whether in front of a judge, a client, the government, or colleagues. Volunteering to present at team meetings or taking advantage of pro bono work opportunities that give you a chance to present or argue a point are great ways to hone your presentation skills early in your career.

What do you like best about your practice area?

What I like best about investigations work is that a lot of what we do affects people’s lives in meaningful ways. If I make a persuasive argument to a prosecutor that ultimately helps my client, for example, it’s incredibly rewarding. And because the practice is complex and always changing, every case allows me to learn and grow in some way as a lawyer.

What is unique about your practice area at your firm?

The collaborative nature of S&C’s working culture stands out to me. Lawyers at many firms are collaborative within a case, but at S&C, we also collaborate closely across practice areas. This comes from a fundamental view that our clients are clients of the whole firm, rather than clients of any particular lawyer at the firm. I think it is a great approach to client service.

What are some typical tasks that a junior lawyer would perform in this practice area?

I rely on junior associates to identify key issues in our cases, and their input can be enormously valuable. If we get a request from the Department of Justice to interview a senior executive, for example, the junior lawyers are instrumental in helping our team identify all of the issues that could be relevant. That task and the skills it requires are, in my view, more important than any other in making a great trial lawyer—it’s all about uncovering and marshalling the evidence.

Junior lawyers can also expect to be asked for their opinions and to contribute ideas! Something I love about S&C is that the focus is always on what people are saying, as opposed to how senior they are. Even if you are just out of law school, you are a core part of the team and expected to contribute your thoughts. Everyone appreciates that no one has a monopoly on great ideas.

Junior lawyers can also gain substantive experience through work on our pro bono Criminal Justice Act Panel cases in which we represent criminal defendants in federal court who can’t afford counsel. Participation in the CJAP enables our associates to provide an invaluable and deeply meaningful pro bono public service while gaining terrific experience at all phases of federal criminal proceedings.

What kinds of experience can summer associates gain in this practice area at your firm?

Summer associates who work on my matters usually research a particular legal or factual issue that is important to the case. They also often help me prepare to interview a witness or to meet with a witness who is going to be interviewed by the government, and then they participate in the witness meeting with me. I think that’s a lot of fun and a great learning experience—oftentimes, the person they meet is much different than the person they got to know on paper, and the issues that emerge may be different than we expected.

Nicole Friedlander, Partner—Criminal Defense & Investigations

Nicole Friedlander is a member of Sullivan & Cromwell’s Criminal Defense and Investigations group and co-head of the firm’s cybersecurity practice. Ms. Friedlander’s practice focuses on white-collar criminal defense, regulatory enforcement proceedings, and internal investigations. Ms. Friedlander joined the firm in 2016 from the United States Attorney’s Office for the Southern District of New York, where she was chief of the Complex Frauds and Cybercrime Unit. During more than eight years of service, she prosecuted sophisticated financial frauds, cybercrimes, money laundering and Bank Secrecy Act offenses, FCPA violations, and criminal tax cases. Ms. Friedlander’s white-collar work includes major prosecutions of offshore banks for facilitating tax evasion, as well as securing one of the largest-ever FCPA resolutions and bringing a groundbreaking racketeering indictment against the owner of multibillion-dollar payday lending companies. Her cybersecurity experience includes leading the successful investigation of the largest-ever cyber theft of customer data from a U.S. financial institution; overseeing the indictment of Iranian state-sponsored hackers for coordinating cyberattacks on 46 financial institutions; leading cutting-edge virtual currency-related cases; and prosecuting a Russian national for hacking U.S. banks in a case the FBI named one of its top 10 of the year.

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