C-Suite Defense Blog
This blog is devoted to business decision-makers at the highest levels—those who have the responsibility of running a company and ensuring the well being of the people who both work for and depend on that business. My goal is to provide information about how criminal law works at the C-Suite level, including how ordinary business judgments can be transformed into federal and state crimes by overbearing prosecutors. When I use the term “C-Suite”, I am referring to the people who work day and night, losing sleep to ensure the lights stay on and the bills get paid. These C-Suite members include entrepreneurs of all stripes, business leaders, advisors, CEO’s, CFO’s, CIO’s, general counsel, and all other professionals of the like.
Most business people are naïve when it comes to this topic. Maybe you took an ethics class in school and certainly you read news reports about business crime cases around the country. Your usual reaction is “this could never happen to me. So, why worry?” The short answer is: it can happen to you, or for that matter, anyone.
I should know. For the past 30 years, I have been a white-collar criminal defense lawyer representing individuals running major corporations, family businesses, and everything in-between. I was also a federal prosecutor in New York City, where I saw first-hand how criminal cases are put together and how federal agents and prosecutors possess enormous power, often with very few checks and balances. Anyone in business at a high level has a target on his or her back, and you ignore this simple fact at your own peril. During my career, I have seen lives crushed and families destroyed. Not due to greed or lust for money, but because of ignorance.
A few years back, when Jeffrey Skilling of Enron fame was being prosecuted, he retained a very skilled civil lawyer to represent him in his criminal case. Skilling remarked, “why do I need a criminal lawyer? I’m not a criminal.” I laughed hard at that one. That’s the type of mindset that gets folks around the country into trouble on a daily basis. It’s the naïve belief that there is a clear distinction between “criminals” and the rest of us. The sad fact is that the federal and state governments views every businessman or woman as a potential criminal defendant—after all, it’s written into our laws. And most people have no idea.
I love when people ask me “how can you represent someone who is ‘guilty’ or ‘who is a criminal?’” My response and belief is that everyone is entitled to a defense. More often than not, I am representing someone who has made a questionable judgment call, rather than a person who actively intended to commit a crime. There, but for the grace of God, goes any of us. To show my clients how easy this can be misconstrued, I often take them through the exercise of going through their last bank loan application. Throughout this exercise I point out all the areas where a federal prosecutor could make a bank fraud case for doctoring facts represented to a federally insured banking institution. I enjoy watching their smugness fade to a slightly ashen hue.
My goal is to address that ignorance, here and now, by educating business leaders and creating awareness of the potential pitfalls that they face when making important business decisions. I am interested in providing insight for those who must deal with real-life problems every day and who may unwittingly fall into a trap through no fault of their own. I want to reach the people in the trenches who have to balance making a profit with staying out of jail. I want to give knowledge to those who have to make the hard choices and who need to think strategically and intelligently in order to succeed in this dangerous world.
Throughout my career I have met incredibly successful, talented, and intelligent people, many of whom are a lot smarter and talented than I am when it comes to running businesses and achieving entrepreneurial success. But all of them had no idea about how the criminal justice system works in real life. And why should they? They simply lacked my background of fighting criminal cases at the highest levels. None have seen what I have over the years. But I am struck, time and time again, by the thought that all of the heartache and pain of a criminal case could have been prevented, if only the key decision-makers understood and recognized the risks they faced.
A lot has been written about the overcriminalization of American business. By any tally, there are hundreds of federal and state crimes that apply to business decision-making. Criminal law covers all sorts of topics that affect businesses: accounting, tax, healthcare, the environment, negotiations, banking, contractual performance, agreements, and many more. I can take most any garden-variety business dispute and find a possible criminal violation. So can prosecutors who have all the power. In one of my most recent cases, high-level executives were prosecuted for fraud, even though they had obeyed a governing state statute, performed under their contract with a state agency, and violated no regulatory rule. How can this be? I will tell you. Just wait.
The overriding goal of this blog goes back to some sage advice by Sergeant Phil Esterhaus from the TV show “Hill Street Blues” (for those of a certain vintage who can remember). Before every shift, the cops met and discussed what was going on and the possible dangers that they might be confronted with during the day. It was serious business and lives depended on that information. Before they hit the streets, Esterhaus made a point of reminding everyone – “Hey, let’s be careful out there.”
I have devoted my life to taking care of people and representing them in the most difficult of circumstances. I save lives—not in the physical sense, but by keeping them free and able to stay with their loved ones. It’s my passion, as you will see, and this blog is another extension of my life’s work.
Remember, be careful out there.