In response to the credit crisis and the recent financial misdeeds by corporations and individuals, law enforcement has boosted its resources devoted to investigating and prosecuting financial white-collar crime.
As such, lawyers representing companies and individuals in the financial field have lots more to consider when trying to advise and protect their clients, said a panel of prosecutors and regulators who met Monday under the auspices of the Practicing Law Institute during an all-day seminar on white-collar crime.
One of the biggest changes that will spark more cases is the growing number of prosecutors and the new divisions that will focus on different kinds of financial crimes, said Richard B. Zabel, chief of the criminal division, U.S. Attorney's Office, Southern District of New York. The office has beefed up to 25 prosecutors with special divisions in areas such as insider trading, Ponzi schemes, accounting fraud, and complex instruments.
"We have changed the manner of pursuing those cases to be more aggressive and more effective, including more aggressive use of wiretaps" instead of relying on email, which recent cases have done, Zabel said.
"These cases are more difficult because they can wreck havoc on the market and still be difficult to prove," he added.
Another big twist is the Dodd-Frank bill, which includes the new whistle blower provision that is "going to change the world," said Susan E. Brune, of Brune & Richard LLP in New York, moderator of the panel and an attorney on the Bear Stearns case.
The new law provides for 10% of any money recovered in a case to go to a whistle blower, and the whistle blower will be awarded double the amount of back pay if he or she is fired for their actions.
"This will be a huge incentive for whistle blowers to come forward," Zabel said.
Zabel advises financial firms to make complete disclosures to the SEC. It will give them a more defensible position if a disgruntled employee, acting as a whistle blower, tries to make the firm's actions look suspicious or illegal. Zabel and the other prosecutors on the panel also said defendants should not be afraid to go to prosecutors to explain their side of the story.
"I know the defense always wants to keep their strategy secret," Zabel said, "but we are always willing to meet with people to learn what might be behind a complaint."