A few months ago, I left the U.S. Department of Justice Antitrust Division (the Division) for private practice at Winston & Strawn. I spent nearly 10 years as a prosecutor and supervisor in the Division, where I prosecuted numerous international and domestic cartels. During my time at the Division, I met hundreds of defense attorneys, including solo practitioners, boutique litigators, large law firm lawyers, former public defenders, former assistant U.S. Attorneys and former Division prosecutors.

With so many seemingly well-credentialed attorneys, it can be difficult for corporate counsel to determine who is the correct attorney for a particular representation, especially because no attorney is perfect and every representation presents new and unique challenges for even the most seasoned practitioner. Corporate counsel therefore should be aware of the following 10 common mistakes that practitioners make when representing clients in criminal antitrust matters.

• Failing to Ask Whether Leniency Is Available

Unlike reactive crime, in a criminal antitrust matter, your counsel's first conversation with the prosecutor is likely not going to be at arraignment—it will be shortly after the corporation or an executive received a subpoena or was visited by the FBI (e.g., for a search or an unanticipated interview). Very rarely does the Division charge an alleged antitrust offender without first interacting with counsel.

Accordingly, here are the primary goals for your attorney's first conversation with the prosecutor: put the prosecutor on notice that the corporation is represented; attempt to determine the status of the corporation in the investigation (e.g., witness, subject, or target); and find out as much information about the case against the corporation as possible.

Those goals are the same for almost any white-collar investigation conducted by a DOJ component or U.S. Attorney's Office. When dealing with the Division, though, there is one more very important question—Is leniency available? After introductions with the prosecutor, your attorney should immediately ask whether leniency is available. Asking this question serves three purposes: you learn whether the corporation can get a complete pass for an antitrust violation; it potentially provides insight into the strength of the prosecutor's case (i.e., whether the prosecutor has a cooperator or sufficient evidence to sustain a conviction); and it shows that counsel has familiarity with Division practice. Failure to ask this question, regardless of whether the corporation is interested in or eligible for leniency, shows the prosecutor that you are unfamiliar with Division practice. In order to gain credibility and obtain information, be sure to hire counsel that knows to always ask whether leniency is available.

• Being Unaware of Previous Division Cases and Policy Guidance

The Division highly values transparency, predictability, and consistency. Indeed, nearly all of its recent criminal case filings (indictments, informations, and plea agreements) are on its website. The Division also has similar repositories for its criminal policy speeches and its Leniency Program. If your company is facing a Division investigation, you and your attorney must be familiar with these materials. Being unfamiliar with Division practice and policy can cost the company millions of dollars or even some corporate executives their liberty.

• Your Attorney Has Her Shtick and Sticks to It

As a prosecutor in the Division, you often repeatedly run into the same defense attorneys. These repeat players range from exceptional to mediocre. One of the most common attributes of an exceptional lawyer is the ability to assess a situation and adapt to the facts and circumstances of that specific situation. Conversely, mediocre lawyers often pick a shtick and stick to it, regardless of circumstance. This shortcoming is especially problematic in antitrust investigations because each investigation is unique and very fact-determinative. There is simply no best way to always defend an antitrust case.

For example, an attorney may have once achieved a favorable result by not cooperating with the government's investigation. In certain circumstances, such as when you know the Division is at a litigation disadvantage due to legal or factual issues, or because certain evidence is unavailable to the prosecutor, the decision to not cooperate with the government is appropriate. If, however, the Division has a strong case and the corporation is ultimately not interested in fighting the government, then being uncooperative may harm the corporation's ability to maximize substantial assistance credit.

The opposite is of course true. A defense attorney who once received favorable treatment for rushing to the prosecutor's office cannot assume that cooperation is always the best option. If the government has a weak case and is unlikely to obtain more evidence against the corporation, cooperation may ultimately lead to the corporation expending significant sums of money to cooperate, or even an avoidable conviction. Consequently, failing to assess the situation and then adapt accordingly can cost your corporation tens of millions of dollars, or even its executives months in a jail cell.

• Assuming that Division Practice Is the Same as Your Local U.S. Attorney's Office or Another DOJ Component

Many practitioners are more familiar with the practices of their local U.S. Attorney's Office or another component of DOJ. Due to the nature of the work and historical practices, each U.S. Attorney's Office and DOJ litigating component has distinct practices.

The nature of an antitrust case is very different from the typical case in a U.S. Attorney's Office—long-term investigations instead of reactive criminal prosecutions. Division prosecutors and the law enforcement agents who work on antitrust matters have thus developed practices with subtle distinctions compared to other federal prosecuting offices. Unfamiliar defense attorneys often fail to recognize the differences before it is too late. You should therefore retain counsel with experience practicing in front of the Division and avoid attorneys with preconceived notions about typical practices based on experience with prosecutors in other parts of the Justice Department. Similarly, as in-house counsel for a corporation, you should recommend individual counsel with substantial familiarity with the Division to your corporate executives.

• Not Reviewing Relevant Documents Before Submitting Them to the Division

Document collection and review is time-consuming and expensive, even with modern e-discovery software and analytics. Not every individual or corporation can spare the expense of reviewing all the records. In an antitrust matter, however, documents are often the key to the case. In order to give the corporation proper advice, your attorney must master the facts. Accordingly, without reviewing the relevant records, your attorney simply cannot give appropriate advice. You and your attorney can be creative with document review, but you need to engage in due diligence before turning over records to the government. This advice is also relevant for merger clearance. The Division has recently opened price-fixing and no-poach investigations based on records that were not adequately reviewed by counsel before production to the Division. Do not let that happen to your corporation.

• Providing Contradictory Information to the Division and Foreign Antitrust Authorities

The Division coordinates international cartel matters with dozens of foreign jurisdictions. In almost all those cases, U.S. prosecutors and their foreign counterparts share information obtained from defense counsel (absent a compelling or contractual reason not to share information). If the Division and the foreign authority receive contradictory information from defense counsel, then the defense attorney loses credibility and the corporation could lose valuable cooperation credit. Thus, when presenting information to the Division and foreign authorities, counsel must remain cognizant that they are sharing information and comparing notes. There may be times when you need to provide different information to the authorities, but your counsel should be prepared to address the perceived inconsistency before and after the disclosures.

• Not Asking the Prosecutor How to Maximize Cooperation Credit

An antitrust offense is a unique form of corporate crime because it involves more than one corporation and several individuals from separate companies. An antitrust offense can also involve an uncertain time period, affect multiple locations or customers, involve multiple products or services, and be connected to other criminal offenses (e.g. fraud or FCPA). With all those variables, defense counsel will not always be able to easily recognize how to maximize cooperation with the government's investigation. Too often defense attorneys do not consult with the prosecutor before proffering information they think will substantially assist the investigation. Effective cooperation requires communication between the prosecutor and defense attorney. Defense counsel should share both hypothetical information that the client can provide and ask questions of the prosecutor regarding areas where the corporation can obtain maximum credit for cooperation.

• Not Preparing Corporate Executives for Questions About Obstruction of Justice or Other Illegal Conduct

At the end of a witness interview, Division prosecutors almost always ask executives whether they engaged in, or know of, any potential obstruction of justice, associated illegal activity, or collusion related to other products or services. To protect these executives and the corporation, counsel needs to prepare potential witnesses to answer these questions. Failure to prepare a witness to discuss these issues can lead to an unexpected or unwarranted expansion of the investigation, revocation of a negotiated deal, or even a separate false statement charge.

• Not Attempting to Dissuade the DOJ From Prosecuting the Corporation

From the corporation's perspective, the optimal outcome is no publicity and no charges filed. On multiple occasions, including a few close cases, I dealt with defense attorneys that did not engage in dialogue with prosecutors and declined opportunities to meet with staff to discuss the matter, even after I told counsel about a pending recommendation to charge her client. While the ostrich approach can work on occasions, once a Division prosecutor tells you that she has recommended charges, immediately request an opportunity to dissuade the Division from filing charges. The Division traditionally allows defense counsel to meet with senior leaders to explain why a potential defendant should not be prosecuted. Always ask for that meeting and never decline an offer to meet. At that point in the representation, this pitch meeting is the best opportunity to achieve the optimal outcome—no charges filed.

• Pleading Guilty Too Quickly After Indictment

It remains true that nearly 97 percent of federal cases resolve via a plea agreement. The Division is no different. In any given year, only a handful of criminal antitrust cases go to trial across the country. In the majority of nonantitrust criminal cases, a defense lawyer is not retained until shortly after the client is arrested. In that scenario, the prosecutor has access to all the evidence and therefore has a considerable information advantage over the defense attorney. This information advantage often leads to quick plea agreements and reduced charges after indictments; otherwise, the prosecutor might charge a more serious offense and be unwilling to offer the lesser charge after investing more time in the matter.

As previously noted, however, the Division rarely charges an individual or corporation before meeting with counsel. Moreover, the Division rarely drops or reduces charges as part of a plea agreement. Therefore, once an executive or corporation is indicted, you should consider waiting until you have received and reviewed the discovery. This is the defendant's opportunity to close the knowledge gap and develop factual and legal defenses, which will allow you to potentially make a pitch to have the charges dropped or engage in more productive plea negotiations. It is unlikely that the plea offer will be significantly different if you wait until after you receive the discovery (although the offer may drastically change if you wait until the eve of trial).

Bonus: Do not let the investigation get personal. Always remember to retain defense counsel that won't forget what your mother taught you: you can catch more flies with honey than vinegar.

Eric M. Meiring is a partner in the Washington, D.C. office of Winston & Strawn. He is a former federal prosecutor who recently served as an acting chief and assistant chief in the U.S. Department of Justice Antitrust Division. Meiring has significant experience investigating and prosecuting sophisticated corporate and economic crimes, including price-fixing, bid rigging, market allocations, no-poach agreements, fraud, bribery, theft, and obstruction of justice.