Yesterday I spent the day at the above-titled conference at Georgetown Law Center, hosted by the Georgetown Business Ethics Institute in partnership with the National Association of Criminal Defense Lawyers, the Heritage Foundation, the U.S. Chamber Institute for Legal Reform and the American Criminal Law Review.  All four of the panels were great, and I enjoyed both the lunch talk by Richard Thornburgh and the wrap-up by Edwin Meese.  All in all, it was a wonderful conference.  Thanks so much to John Hasnas of the Georgetown Business Ethics Institute for inviting me.

Although it's hard to single out individual remarks because every speaker brought something interesting to the conference, I thought I would outline some of the information that was new to me that I heard there.  Most of the people at the conference have been talking and writing about these issues for quite awhile, but we still gained new perspectives from listening to one another.  The panels were also fascinating because not only academics were invited; practitioners such as Andrew Weissmann (former director of the Enron Task Force and current partner at Jenner & Block) and Michael Elston (Chief of Staff and Counselor to Deputy Attorney General Paul McNulty) added to the diversity of thought on their panels.  (And no, this subpoena for Mr. Elston was not served during the conference.)

More below the fold. . . .

Andrew Weissmann began with an anecdote about how the Enron Task Force, which was composed of U.S. attorneys from around the country, felt somewhat "hometowned" in Houston.  I don't think he was seriously hinting that the Task Force suffered from Houstonians dear love for Enron, as the force seemed to be successful at the local level, but not quite at the appellate level. 

William Laufer (The Wharton School of the University of Pennsylvania) spoke on the same panel about entity-level indictments and convictions.  One point that he made that was interesting was that of the almost 1200 corporations that have been convicted during the period 1996-2005, 91.6% had 50 or fewer employees.  Now this may be for many reasons (most corporations are small corporations; smaller corporations have the same individuals as shareholders, directors and officers, so no way for them to separate themselves from the "rogue actors"), but Bill also thought it shed light on a "dual-track" system.  In this system, large corporations can engage in "restorative justice" negotiations to make amends to the community and reconcile with the state.  By doing so, these corporations avoid indictment.

Craig Lerner (George Mason University School of Law) presented a paper co-written with Moin Yahya (University of Alberta) entitled Left Behind after Sarbanes-Oxley, which predicts that "ideal entrepreneurs" will exit the market for officers in publicly-held corporations, leaving only "swashbucklers" and "bean counters."  Ideal entrepreneurs are risk-neutral concerning business risks, but risk-averse as to legal risks.  Because of their risk aversion, they will see the current state of affairs criminalizing conduct with harsh penalties even when no intent exists as a dealbreaker.  (I think Craig responded to a question that even higher executive compensation may not keep these ideal entrepreneurs in the publicly-held market.)  Swashbucklers are risk-seeking for both business and legal risks and so will stay, as will bean counters who will deal with the window dressing of cosmetic compliance programs and the like. 

Julie O'Sullivan (Georgetown Law Center) spoke on some interesting twists in the conundrum whereby corporations do an internal investigation and then later waive attorney-client privilege at the behest of the U.S. attorney.  Julie mentioned the Computer Associates case in which employees who lied to company counsel were later charged with obstruction of justice.  The argument in that case was because the company was under investigation, the company counsel was acting as an arm of the state.  Hmmm.  Julie made the pointed argument that if company counsels are going to be considered state actors, then they will then have to abide by the Constitution and give Miranda warnings, etc.  Also, companies will begin adding to their Upjohn warnings the statement "And if you lie to us, you'll be prosecuted for obstruction of justice," which would probably inhibit communication!

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