The Justice Department’s elevated incentives to entice corporations into disclosing internal wrongdoing is illuminating ambiguity when executives want to step forward.
Exposing their company’s potential offenses to law enforcement has long been risky for those with criminal exposure. Whether trying to get in front of an investigation or experiencing genuine remorse, their chances of avoiding prison vary by prosecutor, district, and judge.
The absence of a road map is more evident when contrasted with new Justice Department policies, some defense attorneys say. DOJ’s Criminal Division and US attorney offices announced guidelines this year to encourage self-disclosures by offering greater transparency and leniency. But the carrot applies only when corporations come clean, not their employees.
That’s left white-collar defense lawyers struggling to offer confident advice to people interested in fessing up and implicating others, in exchange for a generous deal. …
DOJ does have a history within certain offices of rewarding cooperating executives with non-prosecution agreements or recommending little to no prison time for those pleading guilty.
A department spokesman pointed to prosecutors’ consideration of a variety of published procedures on how individual cooperators can receive reduced sentences or immunity, such as US sentencing guidelines, principles of federal prosecution, and the Antitrust Division’s leniency program.
However, there are countless ways cooperation can backfire. …
It could be especially dangerous when approaching the government “out of the clear blue sky and saying, ‘Hey, I’ve got this client, they might have some criminal exposure, do you want to talk?’” said Sarah Hall, a former fraud section attorney who’s now a partner at Epstein Becker & Green.
“You have to give DOJ enough to interest them,” she added. But at the same time, “you might have just revealed enough for them to go off on their own and investigate your client.”