Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
This special issue of The Champion, which coincides with NACDL’s Sixth Annual White Collar Seminar, is the perfect opportunity to reflect on both the past accomplishments of the Association’s white collar initiative and the path moving forward.
From its inception, NACDL’s White Collar Crime Project sought to address issues of general concern to the defense bar that were becoming increasingly common in white collar enforcement and prosecution. The steady erosion of the attorney-client privilege, which effectively created a culture of waiver, served as a call to arms for the project. Because the privilege is fundamental to fairness and balance in our justice system, combating this attack was absolutely critical and an unexpected coalition of organizations rose to the challenge.
NACDL played a pivotal role in founding and supporting the Coalition to Preserve the Attorney-Client Privilege, which successfully achieved important reforms in Department of Justice policy related to corporate charging practices. Among the extraordinary allies in this effort were the following: NACDL, the U.S. Chamber of Commerce, the Association of Corporate Counsel, the American Bar Association, the Financial Services Roundtable, the National Association of Manufacturers, the American Civil Liberties Union, and the Heritage Foundation. The current DOJ charging policy, articulated in the waning days of the prior administration, is a significant improvement over the prior policy. But the coalition continues to work to improve the policy and to preserve the attorney-client privilege, not only in the context of DOJ enforcement, but also with respect to other regulatory agencies with prosecutorial enforcement authority.
By forging such a diverse and powerful coalition, NACDL set the tone for future collaboration on issues of increasing concern to the criminal defense bar. Building on this success, the project worked with a similar coalition of organizations to position the problem of overcriminalization in the national spotlight and raise the level of public discourse on this dangerous trend.
Likely a product of the “tough on crime” mentality, overcriminalization of conduct and overfederalization of criminal law have resulted in a backlogged judiciary, overflowing prisons, and the incarceration of innocent individuals who plead guilty not because they actually are, but because exercising their constitutional right to a trial is too risky. There are over 4,000 federal crimes scattered throughout the federal criminal code, as well as untold numbers of federal regulatory criminal provisions, and enforcement of this inefficient and ineffective scheme is, of course, at tremendous taxpayer expense.
The urgent need to combat overcriminalization transcends political affiliation and partisan ideology. By partnering across the aisle and speaking in one, unified voice, this NACDL-led coalition has ensured that its message will be heard irrespective of the prevailing political tide. This was evidenced most recently with the release of the groundbreaking, nonpartisan report, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. Jointly published by NACDL and the Heritage Foundation, this report (www.nacdl.org/withoutintent) received widespread media attention and served as the impetus for two congressional hearings on the problem of overcriminalization and the need for reform. While executing this proactive reform agenda, NACDL’s white collar staff remains attentive to Capitol Hill developments and provides swift and efficient responses to ill-conceived legislative initiatives.
This full agenda evidences the project’s growth over these last six years and its transformation into a full blown White Collar Crime Policy Department. This department, made up of Director Shana-Tara Regon and Counsel Tiffany M. Joslyn, with direct support from Assistant Director of Public Affairs and Communications Ivan J. Dominguez, is not only advocating for the white collar defense bar, but also equipping its practitioners with the tools to fight the battle on the front lines.
A critical component of NACDL’s white collar initiative is support for the criminal defense bar. From the beginning, educating the bar and providing resources to defense practitioners were preeminent goals of the project. This commitment is stronger than ever today, as evidenced by the department’s programming, brief banks, and online resources.
NACDL’s annual white collar seminar, “Defending the White Collar Case: In and Out of Court,” is the premiere program of its kind nationwide. Addressing cutting edge issues and featuring an unparalleled faculty, hundreds of white collar practitioners have participated in this training program. In its sixth year, the program returns to New York City where NACDL will again partner with Fordham University Law School and the Stein Center for Law and Ethics.
In addition, NACDL frequently produces individual training programs on white collar defense issues. Most recently, NACDL partnered with the American Bar Association to put on the very first panel to analyze the U.S. Supreme Court’s decisions limiting 18 U.S.C. § 1346, the honest services fraud statute. And as part of its White Collar Summer Series, NACDL tackled the doctrine of willful blindness in white collar cases.
In an effort to track the post-Skilling honest services legal landscape and to arm our practitioners with the latest developments and case law, NACDL’s white collar staff recently launched an Honest Services Fraud Filings and Decisions Bank. This Members Only resource is a compilation of post-Skilling honest services fraud filings, from both defense attorneys and the government, and court decisions. Available on the white collar portion of the NACDL Web site, this invaluable tool enables practitioners across the nation to access real-time developments in this changing area of law and to build on successes.
This new bank is only one part of the staff’s commitment to providing NACDL members with current and useful resources. Over the last year, the White Collar Crime Policy Department has dedicated itself to updating and re-organizing the white collar section of the NACDL Web site, which provides useful information regarding multiple topics, including prosecutorial misconduct, the attorney-client privilege, sentencing resources, and federal legislation Web pages. In addition, the staff continues its direct support of the white collar listserv, which allows approximately 3,000 self-identifying white collar practitioners to tap into the expertise of colleagues to learn the most effective means of addressing issues that arise in the context of white collar prosecution. Finally, as readers of The Champion know, NACDL regularly publishes columns and articles addressing white collar crime topics. Timely and replete with fascinating articles, this annual white collar crime issue is further proof of NACDL’s resolute commitment to support the white collar defense bar.
The zeal of NACDL members is evident in courtrooms and legislatures across the country. We are, and will always be, the voice of reason in the criminal justice system.