The term white-collar criminal defense has become an oxymoron when describing outside counsel’s representation of the corporation, and its officers in an investigation conducted by the government. There is seldom a serious defense effort; cooperation with the government has become the byword. These were the words of Robert Luskin, a nationally known criminal defense attorney, in an address to a meeting of the Pennsylvania Association of Criminal Defense Lawyers in Philadelphia last month. Luskin knows the role of defense counsel. He has represented presidential assistant Karl Rove, international champion cyclist Lance Armstrong, and a sitting federal judge, among others, in major investigations. He said he is troubled with what has become the role of defense counsel in internal corporate investigations.
Luskin, a member of the Washington, D.C., law firm of Squire Patton Boggs, said many members of the white-collar defense teams in large firms are former prosecutors. The firms often list the group as the government investigation department—omitting any mention of the word “defense”—to give the appearance that their role is limited investigations, not advocacy. The former prosecutors want to continue their prior roles now as private prosecutors in the corporate world. Not exactly a defense attitude. Defense attorneys have become comfortable in dealing with prosecutors in a cooperative mode and many have become reluctant to even consider defending any such case at trial, Luskin said. He added that prosecutors have grown comfortable in this atmosphere of cooperation and have grown to expect a defense team arriving with their hats in their hands to begin the dialogue.
