Defending White-Collar Crime Cases

A primer

Defending White-Collar Crime Cases

Many white-collar crime investigations involve parallel civil and administrative investigations and proceedings, and also have an increasingly cross-border and international dimension. There are a wide range of events that may trigger counsel’s engagement, such as (1) receipt of an anonymous or “whistleblower” communication alleging misconduct; (2) allegations of misconduct raised by the media or on social media; (3) allegations of misconduct raised internally by management, or externally by auditors; (4) receipt of administrative demands for information by, or notices of complaint made to, regulatory organizations or notices of hearing to appeal before a tribunal; (5) execution of search warrants, an arrest, or receipt of a summons to appear before a criminal court; (6) actual or threatened civil actions; or (7) informal notification that domestic and international enforcement agencies have been seeking information about the client from third parties; or any combination of the above.

What triggers the engagement provides the initial context; however, it is critical for counsel to consider what other possible risks of enforcement action or collateral consequences may exist in order to ascertain the client’s real potential jeopardy. Only with an appreciation of the real jeopardy can an effective defence strategy be developed with a careful
triaging of steps for counsel. This requires mastery of the underlying factual context, relationship dynamics between the targeted client and those who may be adverse, an appreciation of a complex archipelago of legislation and regulation, as well as an understanding of the type of investigative techniques that may be in play. Such techniques range from overt demands for production and warrants executed domestically, to sophisticated surreptitious techniques such as undercover operations, wiretaps and other seizures of electronic communications, to the harvesting of evidence gathered in foreign countries. These investigations are fraught with complexity due to the asymmetrical application of the Charter to administrative versus criminal proceedings, domestically, and differences between constitutional protections domestically versus abroad, such as the distinction between Fifth Amendment in the United States and derivative use immunities in Canada for compelled information under sections 7, 11(c), and 13 of the Charter and statutory protections under the Canada Evidence Act.

At times, these complexities require the client to have separate counsel advising on discrete aspects of parallel proceedings, in which case it is important that all decision-making be framed within the context of the client’s real jeopardy and the client’s objectives within the spectrum of jeopardy. If criminal jeopardy is real but not yet manifest, it may be desirable to resist all processes; in other cases, resolution of other processes may assist in pre-charge advocacy to other enforcement entities that the public interest has already been adequately served and no further action ought to be taken. These are difficult decisions which require counsel to offer insight into the probabilities of other consequences — an analysis that sometimes requires counsel to stay on the cutting edge of policy statements made by enforcers, be aware of current budgetary allocations, keep an ear to the ground about ongoing cases, as well as to have insight into the current state of the capital markets.

Counsel must strive to make responsible budgeting decisions throughout the engagement from the triggering event onwards and provide the client with regular updates and revisions to the litigation budget as matters evolve because resourcing requirements can change abruptly. This is particularly important as new developments and access to resources can be unexpectedly limited as enforcers’ increasingly resort to interim orders to freeze assets pending investigations.

Defending white-collar cases can be deeply rewarding for counsel, with satisfaction being drawn not just from the trial/hearing work but from the resolution of matters before they draw public scrutiny.