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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.
Benjamin Gruenstein, Partner
Cravath, Swaine & Moore LLP

Describe your practice area and what it entails.

My practice area covers the full range of corporate crises, regulatory enforcement proceedings, and white collar criminal defense matters. I represent U.S. and multinational companies, as well as their boards and senior executives, in government prosecutions and internal corporate investigations. These investigations can arise when a company detects potential wrongdoing in response to whistleblower claims and shareholder demands or as a result of government inquiries. Clients will often retain Cravath to handle both investigations and related litigation, which means we can craft a comprehensive legal strategy for them. Much of my practice is international in nature, as cross-border issues—such as compliance with the Foreign Corrupt Practices Act and trade sanctions—are high priority, both for U.S. companies and U.S. government regulators.

What types of clients do you represent?

One of the things I enjoy most about Cravath’s investigations practice is that I represent clients across all industries, whether they are companies or executives. This includes both longtime and new clients of the firm. I have represented clients such as Avon Products, Inc., IBM and NCR Corporation in government investigations relating to Foreign Corrupt Practices Act matters, as well as U.S. Securities and Exchange Commission investigations into alleged accounting fraud and disclosure issues for clients such as DreamWorks Animation SKG, Inc. and Computer Sciences Corporation.

What types of cases/deals do you work on?

My work encompasses government and internal investigations in any areas where our clients have issues, whether it is the Foreign Corrupt Practices Act, insider trading, or accounting fraud matters. I additionally represent executives in internal and government investigations to ensure that their rights are protected. Most of the litigation I work on is related to government investigations, whether criminal or civil. Of course, there is other litigation which I do, and I very much enjoy doing it, as it keeps up my trial practice and gets me into court.

How did you choose this practice area?

When I finished clerking on the DC Circuit and then at the U.S. Supreme Court, I started as an assistant U.S. attorney in the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York, where I worked for five years. Having that experience gave me perspective on how to conduct investigations and how prosecutors expect you to conduct them. So it was a very natural fit to do this sort of work at Cravath. My experience back then as an organized crime prosecutor is, of course, substantively very different than the sort of work I do now, but it taught me transferable skills in how to conduct investigations and how to try cases.

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

I would divide a “typical day” into tasks that are external facing and internal facing. Externally, I spend a lot of time meeting and on the phone with clients: talking through their issues, advising them, and strategizing on how best to approach the problems that they’re facing. And internally, I’m working with my associates to figure out how to develop a strategy for our clients and then implement it. The work my associates do—preparing to conduct interviews in the course of investigations or drafting presentations to the government—is all to implement the strategy that I’m discussing with clients. At Cravath, our associates are a core part of how we represent clients, and we devote a tremendous amount of time both in training them and incorporating them into key legal work in meaningful ways.

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

All litigation skills are transferable to investigations work. Tasks like deposition-taking or cross-examining witnesses create a foundation that is very helpful in conducting sensitive interviews in internal investigations. Hands-on trial experience is extremely helpful in defending clients against potential claims by the government. Even though most government matters end in settlement, the ability to anticipate the strengths and weaknesses of the government’s—and my client’s—case is extremely helpful in setting strategy. So for students and lawyers who are looking to work in this field, I couldn’t stress enough the importance of developing fundamental trial skills.

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

In corporate government investigations, the government has the power of prosecution, which creates significant leverage and, in turn, places pressure on companies to settle. And ultimately, the fight may center not on whether our client is guilty or innocent but over what type of settlement the company will enter into. That said, companies often come to Cravath when they’re not looking for a settlement or when they think that the settlement being offered to them is not palatable. As in all of our practice areas, those are the representations we look forward to: complex and fundamentally important to the client. The challenge is figuring out how to approach the investigation in a way that, even if the cards are stacked against your client, you try and get a result that is acceptable and just to them.

What misconceptions exist about your practice area?

There is a misconception that you are not going to hone your litigation skills by doing white collar criminal defense because the cases settle—but it’s important to keep in mind that everything you do in investigations has a corollary in civil litigation. The skills you develop as a white collar lawyer are transferable to civil litigation and vice versa. For example, the skills you develop in conducting interviews in an internal investigation are the same skills you need to take depositions. And being able to synthesize complex facts and advocate for your client are skills you need just as much when you’re across the table from the government as when you’re talking to a jury at trial.

What is unique about your practice area at your firm?

Typically, clients don’t come to us with their run-of-the-mill matters. We usually handle the investigations that our clients think are the most important for them, whether because of the financial exposure to the company or the potential reputational risk. Because of the firm’s overall reputation, we bring a certain credibility to investigations that’s critical when dealing with the government. We approach investigations with the same seriousness and preparation that we handle all of our litigation and corporate matters, so that when we go before the government, there is no question that the representations we are making are accurate and credible. One thing that is different about our investigations group from other firms is that most of our partners began here as associates straight out of law school—this is a core part of our model, which puts immense emphasis on our training of associates. Like other firms, our investigations partners also served in the government, but we’re different because most of us worked at the firm before heading off to the government and then coming back.

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

Junior associates will handle the nuts and bolts of an investigation. That includes all facets of fact development: preparing to interview witnesses, interviewing witnesses, interfacing with the client on document review and analysis, creating fact summaries, and preparing for presentations to the government. These are all things that associates can do as soon as they get in the building. At the beginning of an investigation, I sometimes won’t know how significant the matter will become, and I typically staff the matter as leanly as possible, often with just me and a junior associate. As time progresses, a matter can require me to add resources, but often, that junior associate takes a lead role, as they know the case better than anyone, having worked on it from the outset.

Benjamin Gruenstein, Partner—Litigation

Benjamin Gruenstein is a partner in Cravath’s Litigation department and a member of its Investigations and White Collar Criminal Defense practice.

Ben’s practice focuses on the representation of U.S. and multinational companies and their senior executives in government and internal corporate investigations in areas including the Foreign Corrupt Practices Act, health care fraud, insider trading, accounting fraud, trade sanctions, and accompanying civil litigation. He has handled both domestic and cross-border investigations, including in Latin America, Asia, and Europe.

Ben received an A.B., summa cum laude, in Philosophy and Mathematics from Harvard College in 1996, where he was elected to Phi Beta Kappa, and a J.D., magna cum laude, from Harvard Law School in 1999, where he was an editor of the Harvard Law Review. During law school, Ben was a summer associate at Cravath. After graduating, he clerked for the Honorable Stephen F. Williams of the U.S. Court of Appeals for the DC Circuit and for the Honorable David H. Souter of the U.S. Supreme Court.

Ben served as an assistant U.S. attorney in the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York from 2002-2008. He joined Cravath in 2008 and became a partner in 2012.

Ted Chung, Partner
Jones Day

Describe your practice area and what it entails.

Clients come to Jones Day’s Investigations and White Collar Defense practice for a variety of reasons. Sometimes they approach us after being contacted by law enforcement authorities or regulators. They seek our guidance on how to interact with these officials and request our help in defending against potential or actual criminal, administrative, and/or civil claims.

Other times, clients have received allegations of misconduct and want our lawyers to investigate the allegations. And, as is increasingly the case, companies also seek out Jones Day for help in evaluating and enhancing their compliance programs and mitigating legal, financial, and reputational risks.

We help our clients in all such situations by gathering facts, conducting legal analyses, and providing strategic and legal advice, among other things.

What types of clients do you represent?

We represent both companies and individuals. Many of our corporate representations are on behalf of large, multinational businesses—both publicly held and private. We represent companies in virtually every industry and with respect to issues and conduct across the globe. Our clients include a number of the largest businesses in the world. We also represent smaller enterprises. From time to time, we represent corporate executives and other individuals. We typically do so in connection with corporate internal investigations and/or government investigations or prosecutions.

What types of cases/deals do you work on?

We work on a wide variety of investigations and white collar matters. Jones Day lawyers have handled some of the most significant white collar matters in recent history. Many of our internal corporate investigations arise out of whistleblower complaints, alleging that employees engaged in some form of misconduct.

Also in the area of internal investigations, we are regularly called on to investigate allegations that representatives of a corporate client made improper payments to foreign government officials in violation of the U.S. Foreign Corrupt Practices Act and local anti-corruption laws.

In addition, we represent clients in the context of government enforcement actions. While we represent crime victims in some of these matters, it is more often the case that our clients are suspected or accused of having engaged in criminal activity. In those cases where our clients have been indicted, we vigorously defend them through pre-trial litigation and, if necessary, at trial.

Last, but certainly not least, we offer a strong pro bono practice, which includes the representation of victims of sexual exploitation and human trafficking, as well as the representation of individuals in wrongful-conviction cases.

How did you choose this practice area?

I served as a judicial clerk for a year immediately following law school. During that year, I found that I was most interested in the criminal cases that my judge assigned to me. From a factual perspective, the cases usually involved more of a human element. I likewise found that the legal issues were more compelling. So I was already starting to lean in the direction of a criminal practice when I joined a large law firm as an associate after my clerkship. Then, as a young associate, I worked on some corporate white collar matters with a partner who had recently come to the firm from the Chicago U.S. Attorney’s Office. I also helped another partner with a pro bono criminal appeal. I enjoyed this work so much that I ended up applying to be an assistant U.S. attorney myself. I got that job and, from that point forward, have devoted much of my career to investigations and criminal defense.

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

My practice is very team oriented, so my days typically involve collaborating with clients and my colleagues at Jones Day. I spend a lot of time both on the phone and in in-person meetings. Occasionally (at least a few times a month), my work requires me to travel, usually by plane and sometimes overseas.

My common tasks include: (1) performing investigative, fact-finding activities (such as interviewing witnesses and reviewing important documents); (2) participating in strategy sessions relating to client matters; (3) analyzing work product prepared by colleagues; (4) keeping clients updated on our work and issues related to their matters; (5) negotiating or otherwise communicating with government enforcement officials; and (6) developing and implementing ways to ensure that the lawyers in our practice are kept up to speed on important legal developments and continue to develop their skills.

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

Investigations and white collar defense is a high-intensity practice that puts a premium on both technical legal skills—e.g., research, writing, and oral presentation skills—and “soft” skills—namely, having a good work ethic and attitude, being able to deliver (or even thrive) under pressure and in a team setting, genuinely enjoying investigating issues, and defending those accused of regulatory or criminal misdeeds.

Classes (e.g., substantive criminal law and criminal procedure), skills-based formal training (e.g., trial advocacy), and observing practitioners in action (e.g., criminal trials) can be helpful in preparing junior attorneys for white collar work. But there is no substitute for real, on-the-job training. In my view, budding white collar lawyers should be proactive in seeking out opportunities to work on real cases with experienced lawyers, whether through public agencies or private firms.

What do you like best about your practice area?

There are many things about my practice area that I absolutely love. The thing I like best is the ability to work on hugely complex and high-stakes matters that raise issues and present challenges across many practice areas and geographies—and to do so on behalf of a number of the world’s leading companies, together with some of the very best lawyers in the world.

What is unique about your practice area at your firm?

Jones Day’s Investigations and White Collar Defense practice stands out in several respects. For one thing, ours is one of the largest and most geographically dispersed white collar practices in the world, while also being perhaps the most integrated such practice among the truly global law firms. We can call on more than 160 lawyers spread evenly across offices throughout the U.S., Europe, Latin America, the Middle East, and Asia/Australia. We function as a unified team.

Much of what we do is distinctly cross-border, involving investigations and defense work spanning multiple countries. We are also notable in that, while this is a field that has historically been male dominated, many of our team members are women. This gender diversity runs from our most accomplished senior lawyers to the many new lawyers who have joined our practice.

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

At Jones Day, junior lawyers typically have their hands in every major aspect of our Investigations and White Collar Defense practice.

Fact Gathering. Junior lawyers are deeply involved in first-level fact-gathering activities and related strategy formulation for client matters. In this regard, they oversee the review of electronic data and hard-copy documents (where the most important facts are often buried, awaiting discovery); assist in the preparation for, and at times conduct, witness interviews; and help more-senior lawyers plot strategy.

Research/Analysis. Junior lawyers engage in legal research and analysis, preparing memoranda and other work product if/when necessary.

Interactions With Clients/Government. At Jones Day, junior lawyers are expected to handle certain interactions with client representatives (e.g., providing updates and addressing specific issues) and to help with presentations to government authorities (e.g., developing presentation materials and assisting in the meetings).

Practice and Client Development. Our junior lawyers often play key roles in practice activities and in client development efforts (e.g., preparing drafts of publications or presentations on key substantive issues, attending/assisting in internal training programs, and assisting with client pitches).

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

It is very fair to say that Jones Day’s Investigations and White Collar Defense practice will continue to grow substantially in the coming years. For as long as people continue to engage in, or be accused of engaging in, misconduct, there will be demand for good lawyers to investigate those matters and provide thoughtful, reasoned counsel to those involved and other interested parties.

Companies are increasingly recognizing the benefit of such counsel, especially now that more and more countries are following the lead of the U.S. in getting tough on corporate crime. Indeed, the globalization of corporate criminal enforcement accompanying the globalization of business more generally should lead to expanded opportunities for lawyers to join this fascinating area of the law.

Ted Chung, Partner—Investigations & White Collar Defense

Ted Chung, chair of Jones Day’s Investigations and White Collar Defense practice, has deep experience conducting internal investigations, defending companies and individuals in criminal and regulatory proceedings, and counseling clients on compliance programs and issues.

Throughout his career, Ted has helped participants in many different industries address some of their most complicated and sensitive problems. He has served as investigative and defense counsel in numerous high-profile criminal and administrative matters in the United States and across Latin America, Asia, and Europe. These matters have involved allegations of bribery and other corrupt conduct; financial and regulatory fraud; procurement fraud; accounting irregularities; violations of export/import and immigration laws; and violations of corporate policy.

Prior to joining Jones Day, Ted served as general counsel to Illinois Governor Pat Quinn; a partner at another major law firm; an assistant U.S. attorney and deputy chief in the Criminal Division of the Chicago U.S. Attorney’s Office; the first assistant corporation counsel in the city of Chicago’s Law Department; and deputy chief of staff (public safety) for Chicago Mayor Richard M. Daley.

Ted earned his undergraduate degree from Dartmouth College and his law degree from Northwestern University.

Leslie Caldwell, Partner
Latham & Watkins LLP

Describe your practice area and what it entails.

My practice involves representing clients in connection with a range of enforcement matters, advising companies, individual executives, and boards facing crises or government investigations. Put simply, I help clients navigate through issues that can be really threatening, both on the personal and enterprise level, that they may never have encountered and don’t know how to handle. I see myself as a strategic advisor to them, advocate for them, and partner with them, often at a time when their business is vulnerable, and the prospects of the unknown are scary.

What types of clients do you represent?

Many of my clients have a technology emphasis. I represent numerous Fortune 500 corporations, as well as leading technology and startup companies, and I’m fortunate to work with the companies themselves, boards, and individual board members.

What types of cases/deals do you work on?

My work covers a wide array of white collar and other sensitive matters. This ranges from handling government-facing work, such as FCPA and other anti-corruption work, to conducting internal investigations, advising on theft of trade secrets and economic espionage, and guiding clients though other sensitive investigations. Much of my work also involves strategic crisis management and response.

How did you choose this practice area?

I was always drawn to criminal law. I like the urgency of it. I like the ability to stand by a client and be helpful in what can be one of the most challenging times that they may ever face.

At the macro level, I think I’m drawn to the psychology that is at the core of a white collar engagement: human nature, sometimes human frailty, and often human good. And when all of those things come together in a high-stakes investigation or high-profile controversy, it is very gratifying to help my clients act quickly and act wisely. Our work together has tangible effects about which real people care and by which they are impacted.

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

There is no typical day. Much of my time is spent counseling clients, and one of the things that keeps the practice interesting is that you don’t always know when an unexpected event will need to take priority. In the kinds of high-stakes controversies I handle, that could be a government inquiry, a media request, or a query from an employee. And those things will take immediate priority.

In the regular course of work, other common tasks I perform include engaging in strategy development, working on legal presentations and briefs, working with associates and others on my team, and taking phone calls—a lot of them.

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

One of the most important skills is to be able to learn how to react to new information and to make good, strategic decisions in real time, even as new—and sometimes unhelpful or damaging—information comes in. A key to this—which is really hard under pressure—is to develop the skill of listening. It’s not unusual for newer lawyers to want to react right away, and when they do, they sometimes react to what they think is being said and not what’s actually being said. Listening and reacting to what’s real, then adapting to it, is essential.

If you have the opportunity to be a prosecutor—particularly a federal prosecutor—that can be great experience. At the beginning, it will feel like being thrown into the fire. Prosecutors learn particularly quickly to get comfortable making decisions even when things aren’t perfect—when they don’t yet have all the facts, when they may not have all the resources, and when they don’t have all the time they’d like to think things through. Early on, they get experience standing up in court and making arguments before a judge or jury.

All of this is invaluable in private practice. In order to be most effective and put your private clients in the best possible position to navigate a crisis, it’s important to be able to help a client understand what the government is looking for and to have credibility with a prosecution team. Having done it yourself goes a long way toward being able to accomplish that.

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

The stakes are high, and you are often required to make major decisions without all of the facts. In an internal investigation, for example, your client may have some, but not all of the information. Individual employees may have some, but not all of the information. And the government, with whom you are simultaneously cooperating and litigating against, may have some but not all of the information. Your client will also be facing many pressures for definitive answers—to the board, shareholders, the public, and the government.

Against that backdrop, it can be difficult to make strategic decisions. Getting the experience to do so, and getting comfortable with the unknown, are skills that come with time—and even when you have them, things are always challenging.

What do you like best about your practice area?

I already touched on the excitement of the unknown. And it is true that I never know what is coming next. I get to bring every part of my experience to work every day, and I always learn something new.

Importantly, at Latham, I work with an incredible group of people who work well together as teammates and partners. So much of what we do comes down to exercising good judgment, that it’s fantastic to have great colleagues with complementary experience to bounce things off of, offer advice, and lend support. Often, there’s not a “right” or a “wrong” answer to a client’s situation; there are a range of choices that must account for the facts (both known and unknown), the business, the political and social environment, and many other factors. Being surrounded by a constellation of truly talented, committed, and experienced colleagues helps all of us and our clients make the best choices.

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

Most cases are staffed leanly, providing a good deal of opportunity for hands-on experience. Junior members of my teams are often the keepers of the facts—they will have looked at the documents, understood the background and context, and prepared for each stage of the investigation. In some cases, junior lawyers are also able to get involved with interviews of even the most senior executives—helping to shape outlines, sitting in and taking notes, and gaining an understanding how all of the information will come together to create a resolution for the client.

More broadly, Latham has a dedicated program to ensure that associates can receive credit for extraordinary training opportunities—such as observing depositions and witness interviews or attending government presentations—that are not typically billed to the client. This allows junior lawyers the chance to see colleagues in action and understand how their own careers can progress.

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

Latham’s white collar defense and investigations lawyers have come from and gone on to lots of interesting roles. Quite a few come to us from clerkships and the DOJ Honors Program. Others come straight from law school. It is not uncommon for our associates to leave Latham for a few years to pursue an opportunity for public service and then return to us more seasoned and with a new appreciation for the resources available to us in private practice.

Likewise, many of our lawyers go on to serve in the United States Attorney’s Offices, the White House, DOJ, and SEC and with state attorneys general. Several Latham lawyers have also gone on to become judges or professors. On the private sector side, white collar lawyers go in-house as general counsel or assistant general counsel, as well as compliance counsel or compliance officer and even cybersecurity and privacy counsel. Latham supports lawyers in a wide range of career trajectories—for example, the firm shares job openings at our clients through our Latham Alumni Network and offers a unique career coaching program for current associates.

Leslie R. Caldwell, Partner—Litigation & Trial

Leslie R. Caldwell is a nationally recognized white collar lawyer. She advises companies, individual execu-tives, and boards facing crises or government investigations.

Ms. Caldwell, former Assistant Attorney General (AAG) of the U.S. Department of Justice’s (DOJ) Criminal Division, draws on her experience handling many of the most closely watched corporate criminal, fraud, and foreign bribery matters of the past two decades. She serves as a trusted advisor to numerous Fortune 500 corporations—including leading technology companies—regarding sensitive matters, such as crisis management, internal investigations, and government enforcement. Ms. Caldwell regularly advises senior executives in connection with government investigations.

She helps clients to achieve the best possible results in white collar criminal matters, internal investi-gations, DOJ and other government investigations, U.S. Securities and Exchange Commission regulatory enforcement matters, crisis management, and other highly sensitive and confidential matters.

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.

Aisling O’Shea, Co-Head
Sullivan & Cromwell LLP

Describe your practice area and what it entails.

I’m a member of Sullivan & Cromwell’s Litigation group, and my practice focuses on criminal defense, government investigations, and FCPA work. We represent companies and individuals in criminal, regulatory, and internal investigations.

What types of clients do you represent?

Like all lawyers at S&C, our client roster in this practice area is very diverse. I’ve represented financial institutions, manufacturing organizations, and all types of companies—some of which are highly regulated and others that are less so. I also represent individuals across a wide swath of industries.

What types of cases/deals do you work on?

As co-head of S&C’s FCPA and Anti-Corruption practice, I work on FCPA and other corruption-related matters but also on matters related to securities fraud, wire fraud, corporate internal controls, tax issues—you name it. The way in which we approach our white collar practice is a microcosm of the generalist model we use to approach everything else, which means that we’re encountering not just a wide variety of clients, but also a wide variety of legal and factual issues.

How did you choose this practice area?

The initial cases that I worked on as a young associate at S&C were government investigations where we represented companies. The first was a mutual fund company in both criminal and regulatory investigations, and the second was an insurance company in a series of criminal investigations. I fell in love with that kind of work and feel fortunate both to have had the opportunity to see things from the other side when I left S&C in 2012 to become a federal prosecutor and also to have been able to rejoin the firm five years later with that experience under my belt.

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

There is a huge range to how I spend my days! When I’m in the office, I spend a good deal of time on the phone with clients strategizing about issues or reviewing documents, including underlying factual records related to my cases and work-product-like advocacy pieces to use with the government. A significant portion of my days are also spent brainstorming and thinking deeply about the various cases on which I’m working and how to approach the complex issues my clients face. When I’m not in the office, I might be meeting with the government or clients or interviewing witnesses. Given the range of what we do in our practice, there really is no one typical day, which is one of the things that keeps it exciting.

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

Generally speaking, I recommend taking courses in areas that genuinely interest you and reflect your long-term goals. It’s also important to try and gain relevant, hands-on work experience in both of your summers. The government offers terrific, rigorous internship programs that can be a great option for your 1L summer, even if you ultimately want to end up at a law firm after you graduate. To the extent that they’re available, I would also recommend pursuing a criminal law clinic or externship during the school year, which can be incredibly valuable. At the end of the day, it’s important to “test the waters” before you begin practicing and gain as much practical experience as you can, which will help you determine whether you actually enjoy working in the areas of law that you’re drawn to as a student.

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

What I enjoy the most about my practice is also what’s the most challenging. Not only do we deal with high-stakes, “bet-the-company” matters, but we’re also representing clients, including corporate clients, who are placing their trust in us as they face incredibly confusing and scary circumstances. The results of our efforts impact real people—their freedom and their livelihoods—and I feel a great duty to my clients to help them achieve the best possible outcomes.

What do you like best about your practice area?

One of the things that I love about my practice is that it allows me to deal on a daily basis with incredibly complex, high-stakes problems for which there are no clear or easy answers. At S&C, we have the luxury of representing so many different clients in such a wide variety of industries that I’m constantly learning and experiencing new things. To that end, one fun thing about being a litigator with a broad client base is that we also get to become experts on whatever it is our clients do. And while you can take that expertise and use it to inform your thinking in the future, you still have to learn about what your next client does.

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

Even the very junior lawyers in our practice have many opportunities to experience firsthand the issues that our clients face and how the work they’re doing in the office relates to the real world. For example, a junior lawyer might be tasked with reviewing documents related to an upcoming witness interview and later be invited to attend that interview. Seeing how selecting the right documents allows us to question the witness in the most effective way and experiencing how the interview is received in the room can be highly rewarding. At S&C, we place an enormous amount of value on providing our junior lawyers not only with the technical skills they need to do the job, but also with the requisite practical experience that is necessary for them to develop and grow into well-rounded practitioners. As a result, all of our lawyers are treated as integral members of the team from day one, which makes the important work that we do that much more meaningful.

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?

At S&C, we train our lawyers to be generalists and don’t expect new lawyers to have any particular area of expertise. If you join our litigation group, for example, you’ll be trained to do white collar defense and investigations in the same way that you’ll be trained to practice securities litigation and employment arbitration and all of the other matters that our clients face. Our training model is reflective of the way we approach our practice more broadly; even among the partner ranks, many people continue to be true generalists throughout their careers. That said, many of my colleagues at S&C have spent time in the government as prosecutors, and I think having that experience and perspective is very valuable.

Aisling O’Shea, Co-Head—FCPA and Anti-Corruption Group

Aisling O’Shea is co-head of Sullivan & Cromwell’s FCPA and Anti-Corruption group and a member of the Litigation group. Her practice focuses on criminal defense, government investigations, and the FCPA.

Aisling began her legal career working on complex financial investigations as an associate at Sullivan & Cromwell. She then served for five years as a trial attorney in the FCPA Unit of the Fraud Section of the U.S. Department of Justice’s Criminal Division. Aisling and her case team received the Homeland Security Investigations Outstanding Financial Investigation award in 2016 for their work on a complex FCPA and money-laundering investigation involving corruption in a state-owned oil company in Venezuela. The investigation resulted in more individual prosecutions than any other FCPA matter and over a dozen guilty pleas.

Aisling returned to Sullivan & Cromwell in 2017. She has been recognized as one of “North America’s Future Leaders in Investigations” by Who’s Who Legal (2019, 2020) and listed in GIR’s Women in Investigations survey (2018).

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